GENERAL PURCHASE AGREEMENT
BETWEEN
AT&T CORP.
AND
LUCENT TECHNOLOGIES INC.
GENERAL PURCHASE AGREEMENT
THIS GENERAL PURCHASE AGREEMENT (this "General Agreement" or
"Agreement"), dated as of February 1, 1996, is by and between Lucent
Technologies Inc. and AT&T on behalf of itself and
Ordering Companies.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in Article I hereof.
WHEREAS, the Board of Directors of AT&T has determined that it
is in the best interests of AT&T and its shareholders to separate AT&T's
existing businesses into three independent businesses; and
WHEREAS, AT&T desires to purchase and license
telecommunications equipment, systems and services and Supplier is in the
business of engineering, furnishing and installing telecommunications systems
and equipment, constructing telecommunications networks, providing premises
equipment, and providing consulting and other services; and
WHEREAS, Lucent Technologies Inc. and AT&T wish
to establish
the fundamental terms and conditions pursuant to which AT&T shall
order, and
Lucent Technologies Inc. shall provide, such telecommunications
equipment,
systems and services.
NOW, THEREFORE, the parties intending to be
legally bound,
agree as follows:
PART 1
COMMON TERMS AND CONDITIONS
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the
following definitions
shall apply:
1.1 ACCEPTANCE means Ordering Company's acknowledgment that
Products and Services provided or installed by Supplier have met the Acceptance
Test. It is agreed that both parties will respond to their obligations regarding
completion of Acceptance in a prompt and expeditious manner. Unless Supplier
receives written notification indicating otherwise from Ordering Company,
Acceptance will be deemed to have occurred thirty (30) days after Supplier's
notice of its completion, unless a longer Acceptance Test Period has been agreed
to. Acceptance of a particular release of Software in the ITN or in the First
Field Application shall constitute Acceptance of all copies of such Software to
be provided Ordering Company, regardless of when each such copy of such Software
is installed on its Designated Processor.
1.2 ACCEPTANCE DATE means the date on which Supplier's Product
or Software successfully completes the applicable Acceptance Test, or, unless
Supplier receives written notice indicating otherwise from
Ordering Company,
thirty (30) days after Supplier's notice of completion, whichever occurs sooner.
1.3 ACCEPTANCE TEST means the test upon Supplier's Product or
Software agreed upon by the parties, which may be performed by or on behalf of
Ordering Company during the Acceptance Test Period to determine whether the
Product or Software meets the applicable Specifications.
1.4 ACCEPTANCE TEST PERIOD means the period of time in days,
agreed upon by the parties and specified in the applicable Order or Supplemental
Agreement, during which the Acceptance Test shall be completed. In the absence
of such agreement, the Acceptance Test Period shall conclude thirty (30) days
from delivery of the Product or Licensed Materials to Ordering Company.
1.5 ACTION as used in Section 5A.1(a), AGREEMENT TO ARBITRATE,
means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or
investigation by or before any federal, state, local, foreign or international
Governmental Authority or any arbitration or mediation tribunal.
1.6 ACTIVE LICENSED SOFTWARE PRODUCT means an Application
Software Product that is actively embedded at Ordering Company sites and has
been the subject of some Product sales activity with any Ordering Company in the
previous three (3) years;
1.7 ADDITIONAL WORK means Work covered by a
Change Order.
1.8 AFFILIATE of a party means a United States company or
other entity which is under common control with, controls, or is controlled by,
such party to this Agreement, as long as such control exists, where "control" is
defined as ownership greater than fifty percent (50%) of the equity or
beneficial interest of such entity or the right to elect or to appoint a
majority of the board of directors or other governing body of such entity.
1.9 AGREEMENT means this Agreement and any
Work Orders or
Change Orders issued pursuant thereto.
1.10 AGREEMENT DOCUMENTS, as referred to in Article 11 means
this Agreement, any Special Conditions, Drawings, Specifications, Supplementary
Specifications which have been or will be mutually agreed upon.
1.11 APPLICATION FOR PAYMENT means a proforma completed work
summary with supporting documentation from Supplier to Ordering Company.
1.12 APPLICABLE DEADLINE has the meaning set
forth in Section
5A.3(b), DEMAND FOR ARBITRATION.
1.13 APPLICATION SOFTWARE means Software that operates on a
generally available computer system and serves a function other than controlling
the fundamental operation of the computer system on which it is loaded (i.e.,
does not serve as a computer operating system). Application Software excludes
all Software that is utilized by the 5ESS(R) Switch.
1.14 AR means Assistance Request. Defect AR is an Ordering
Company Assistance Request due to a failure of the Product to perform to
Specifications and requires a design change to resolve. Service AR is an
Ordering Company Assistance Request due to a non-defect system problem or to
answer a technical question.
1.15 ARBITRATION ACT means the United States Arbitration Act,
9 U.S.C. Sections 1-14, as the same may be amended from time to time.
1.16 ARBITRATION DEMAND DATE has the meaning set forth in
Section 5A.3(a), DEMAND FOR ARBITRATION.
1.17 ARBITRATION DEMAND NOTICE has the
meaning set forth in
Section 5A.3(a), DEMAND FOR ARBITRATION.
1.18 ARM means Assistance Request Management.
1.19 AT&T means AT&T Corp., a New York
corporation.
1.20 AT&T EH&S PRACTICES as referenced in Article 11 means
environmental, health and safety practices that AT&T promulgates for use in its
own domestic operations and which it has provided to Supplier in the manner by
which notices are provided.
1.21 BENEFICIAL OCCUPANCY means the utilization by Ordering
Company of Work constructed by Supplier before Final Acceptance.
1.22 BILL OF MATERIALS means the list of major material items
by quantity to be ordered for a Work Order, which is taken from the Drawings
after the Work Order is engineered.
1.23 CALL RECEIPT means the process of ensuring that the
Ordering Company Assistance Request is referred to the appropriate Supplier
technical support group responsible for resolution. This task involves answering
the telephone (or electronic inquiry), gathering pertinent Ordering Company and
technical data, determining the destination of the request for analysis to
ascertain if and how to bill Ordering Company for the Service being provided.
1.24 CHANGE ORDER as referred to in Article 11 means a written
Order by Ordering Company on its Change Order Form requesting a change to the
Work, as approved by Supplier, e.g., to approve variations in quantity or method
of Work.
1.25 COMPLETION DATE means the date by which Supplier and
Ordering Company agree in writing that the Work is to be completed.
1.26 COMPLETION SCHEDULE means the schedule for completion of
the Work contained in a Work Order or another writing signed by the parties.
1.27 CONSULTATION SUPPORT means technical assistance delivered
by telephone, electronic mail and/or telefax from Supplier's location via the
Call Receipt function.
1.28 CONSTRUCTION DELAY is defined in Section
11.21, NOTICE OF
LABOR DISPUTES, below.
1.29 CPR, as used in Article 5A, means the
Center for Public
Resources.
1.30 CUSTOM SOFTWARE as referred to in Article 9 means the
Source Code, Object Code and Related Documentation developed by Supplier solely
on behalf of Ordering Company and in which Ordering Company has an ownership
interest (up to 100%) as specified in a Supplemental Agreement.
1.31 CUSTOMER CONNECTIVITY means the project in which
Supplier, pursuant to a Supplemental Agreement, is building a Network for AT&T
in various states of the United States to provide local telephone service.
1.32 DEMOBILIZATION as referred to in Article 11 means
compensation to Supplier for labor, equipment and load associated with ceasing
an operation due to Construction Delay and moving to another site.
1.33 DESIGNATED PROCESSOR means the Product for which licenses
to Use Licensed Materials are initially granted.
1.34 DIFFERING SITE CONDITIONS means (1) subsurface or latent
physical conditions at the Site differing materially from those indicated in the
Agreement Documents, or (2) unknown physical conditions at the Site, differing
materially from those ordinarily encountered and generally recognized as
inherent in Work of the character provided for in Article 11 or (3) conditions
differing materially from those indicated in the Agreement Documents and found
to be archaeologically, historically or culturally sensitive.
1.35 DISCONTINUED AVAILABILITY (DA) means a Supplier issued
Discontinued Availability announcement, which is written notice to Ordering
Company that Supplier will cease
production of a specific Product or technology. This notice will also specify
the last date that Supplier will accept an equipment order (EO) from Ordering
Company and a timeline for how long Supplier will continue maintenance support
for the specific Product or technology.
1.36 DRAWINGS means the approved plans, profiles, working
drawings, and supplemental drawings, or exact reproductions thereof, which show
the location, character, dimensions, and details of the Work to be done, except
for shop drawings provided by Supplier.
1.37 EFFECTIVE DATE means January 1, 1996.
1.38 ENGINEER as referred to in Article 10 means a designation
reserved for a person or organization working for Ordering Company assigned
and/or identified to perform engineering services, including but
not limited to:
development of project requirements; creation of product design;
preparation of
drawings, Specifications and bidding requirements; and
provision of Services
during the construction phase of the project.
1.39 ENHANCEMENTS as referred to in Article 9 means new
releases of Software, Software improvements and Software upgrades.
1.40 EXPORT means, without limitation, physical shipment;
transmittal by any means (including electronic); oral, written, or visual
disclosure, either inside or outside the United States to a non-United States
national.
1.41 FIELD ORDER as referred to in Article 11 means a verbal
direction, confirmed by a Change Order, within the Scope of Work issued to
Supplier which interprets the Agreement Documents, excluding Article 11, or
authorizes minor variation in the Work from the requirements of the Agreement
Documents which Supplier agrees does not increase the unit prices but may change
the units that make up affected work.
1.42 FINAL ACCEPTANCE means a written Acceptance of the Work
signed by an authorized Ordering Company representative issued when all the Work
is acceptably completed and all items on the Punch List have
been completed.
Punch List means the list of deficiencies to be corrected or completed as a
result of the final inspection of the Work.
1.43 FIRMWARE means a combination of (1) hardware and (2)
Software represented by a pattern of bits contained in such hardware.
1.44 FIRST FIELD APPLICATION shall mean the
first installation
of Software in AT&T's live network.
1.45 FIT means physical size or mounting
arrangement (e.g.,
electrical or mechanical connections).
1.46 FORCE MAJEURE means fires, strikes, riots, embargoes,
explosions, earthquakes, floods, wars, water, the elements, labor disputes,
shortages of or inability to secure materials and/or transportation facilities,
non-regulatory acts or omissions of government carriers, suppliers or other
third parties, or other causes beyond a party's control whether or not similar
to the foregoing.
1.47 FORM means physical shape.
1.48 FUNCTION means product features.
1.49 GOVERNMENTAL AUTHORITY as used in Article 5A shall mean
any federal, state, local, foreign or international court, government,
department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental authority.
1.50 HARDWARE DEPLOYMENT means the hardware fix, as the result
of a Product change notice, which is deployed pursuant to an Order or
Supplemental Agreement.
1.51 INFORMATION means information, whether or not patentable
or copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, Specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
1.52 INITIAL RESPONSE TIME means the time it takes for
Ordering Company to reach a Subject Matter Expert once Ordering Company contacts
Supplier Call Receipt group.
1.53 INSTALLATION COMPLETE DATE means the date on which a
Product or Software or System is installed by Supplier at the desired location
and, for Licensed Materials, is ready for Use by an Ordering Company.
1.54 INTELLECTUAL PROPERTY AGREEMENTS means the Patent License
Agreement, Patent Assignments, Patent Defensive Protection Agreements, Patent
Joint Ownership Agreement, Technology License Agreement, Technology Assignment
and Joint Ownership Agreement, (in each case, as defined in the Separation and
Distribution Agreement dated as of the date hereof by and among AT&T, NCR and
Supplier (the "Separation and Distribution Agreement")).
1.55 LICENSED MATERIALS means the Object Code and Related
Documentation wherein the parties may mutually agree to special terms and
conditions, such as field use
restrictions, restrictions on use by third parties and the like as specified in
a Supplemental Agreement. In addition, Licensed Materials may include Source
Code but only if so specified in a Supplemental Agreement.
1.56 LUCENT TECHNOLOGIES means Lucent
Technologies Inc., a
Delaware Corporation.
1.57 LUMP SUM PRICE means a price other than a Unit Price
agreed upon in writing by the parties for a specific item of Work prior to
scheduling of the item of Work.
1.58 MAJOR HOLIDAYS (or Company-designated day
of observance)
New Years Day
President's Day (Massachusetts)
Patriot's Day (Massachusetts)
Memorial Day
Independence Day
Labor Day
Columbus Day (Massachusetts)
Thanksgiving Day
Day Following Thanksgiving
Christmas Eve (Massachusetts)
Christmas Day
1.59 MAKE READY COORDINATION as referred to in Article 10
means additional assistance offered by Supplier for compensation at agreed upon
rates.
1.60 MATURE SOFTWARE PRODUCT means an Application Software
Product that has not been the subject of any Product sales activity with any
Ordering Company within three (3) years.
1.61 MANAGEMENT NOTIFICATION means the
internal Supplier
process that sets the minimum standards by which Supplier
management will become
aware of a problem. The intent of escalating a problem is
(a) to bring
additional resources together to resolve it, (b) to apprise
management of the
situation, or (c) to acknowledge notification by contacting
Ordering Company.
1.62 METHOD OF PROCEDURE (MOP) means a detailed, documented
methodology, as referenced in AT&T Practice 790-100-421AC, developed by the OSWF
(defined in 1.68), and its support departments, listing the Work to be performed
and the procedures to be followed for any construction, Software Product Update,
or maintenance activity near an AT&T plant.
1.63 MODIFICATIONS as referred to in Article 9 means Ordering
Company additions to, deletions from or merges of Software with one or more
programs owned or licensed by Ordering Company that results in an updated or
otherwise modified software.
1.64 NCR means NCR Corporation (formerly named AT&T Global
Information Solutions Company), a Maryland corporation.
1.65 NEW SOFTWARE PRODUCT as referred to in Article 10 means
an Application Software Product initially licensed to Ordering Company after
execution of this Agreement.
1.66 OBJECT CODE means the fully compiled or assembled series
of instructions, written in machine language, ready to be loaded into the
computer, that guides the operation of the computer.
1.67 ON-SITE ASSISTANCE means technical assistance provided by
a Supplier's engineer at Ordering Company's site at Ordering Company's request,
and as agreed to by Supplier.
1.68 ON-SITE WORK FORCE (OSWF) means local Ordering Company
personnel responsible for the operation, maintenance, and protection of
operating plant.
1.69 ORDER means any written or electronic request, other than
a Supplemental Agreement, that is presented to Supplier by an Ordering Company
in accordance with the terms of this Agreement to purchase Products or Services
or to license Licensed Materials from Supplier.
1.70 ORDERING COMPANY means any one of (a) AT&T, (b) an
Affiliate, of AT&T (c) a United States entity at least twenty-five percent (25%)
of the ownership interest of which is owned directly or indirectly by AT&T; or
(d) a non-United States entity at least twenty five percent (25%) of the
ownership interest of which is owned directly or indirectly by AT&T and in which
the other party (or parties) in the non-United States entity is not a
telecommunications services provider(s). An Ordering Company must be designated
in writing by AT&T. Orders or Supplemental Agreements will be contractual
relationships between Ordering Company and Supplier and only Ordering Company
and Supplier shall have the respective rights and duties of buyer and seller
thereunder.
1.71 ORDERING COMPANY'S INFORMATION means certain material and
technical and business information, owned or controlled by Ordering Company or
any of its Affiliates, relating to the operation of Ordering Company's business
operations. The term also means and includes any associated information
developed prior to the effective date of this Agreement by the AT&T business
units and other organizations which compose Ordering Company, regardless of
whether such information was originally disclosed to Supplier in written or
other tangible form.
1.72 ORDERING COMPANY NOTIFICATION BULLETINS mean the written
notices transmitted to Ordering Company that alert Ordering Company of potential
Product conditions or configurations which could have a negative affect on
Ordering Company operations.
1.73 ORDERING COMPANY REPRESENTATIVE means the person
representing Ordering Company responsible for overall coordination and
management of the project activities as designated in the Agreement. The
Ordering Company Representative is an employee of Ordering Company.
1.74 OTHERS means an entity other than Supplier that has been
contracted by Ordering Company to perform a portion of Work on a project.
1.75 PERFORMANCE METRICS as referred to in Article 10 means
Supplier's performance objectives regarding the manner in which it Responds,
Restores, and Resolves Ordering Company's request for Ordering Company Technical
Support called in through Supplier's Call Receipt function. Ordering Company
requests that do not go through Supplier's Call Receipt function are excluded
from the Performance Metrics.
1.76 PRICE means the price for the Work to be performed by
Supplier as set forth in the Work Order, Change Order, Supplemental Agreement or
other document(s) signed by the parties.
1.77 PROBLEM MANAGEMENT means the procedures and actions
performed or required to be performed by Supplier upon written or oral request
of Ordering Company to investigate and manage the resolution of a reported
condition in a manner that provides Ordering Company with a single interface.
1.78 PROBLEM RESOLUTION means the analysis of the technical
data to determine, at minimum, a short term resolution. Depending upon the
analysis results, the response to Ordering Company may be in the form of
technical advice, a procedure performed by Supplier support personnel, or a
software product update. Technical questions or inquiries regarding the
operation or use of the Product are also handled under this task.
1.79 PRODUCT means systems, equipment and parts thereof, but
the term does not mean Software whether or not such Software is part of
Firmware.
1.80 PROPOSAL means the proposal or bid
prepared by Supplier,
making reference to this Agreement.
1.81 RELATED DOCUMENTATION as referred to in Article 9 and in
this Article 1 means materials useful in connection with Software, such as, but
not limited to, flow charts, logic
diagrams, program descriptions, and Specifications. No Source Code
versions of
Software are included in Related Documentation.
1.82 REMOBILIZATION as referred to in Article 11
means
compensation to Supplier for labor, equipment and load associated
with returning
to an operation that was demobilized. See "Demobilization".
1.83 RESOLVE means that a permanent solution to the problem
has been provided. For service ARs, Resolution means that the question has been
answered to Ordering Company's satisfaction. For defect ARs, Resolution means
either that a final correction to the defect has been released to Ordering
Company or that Supplier has notified Ordering Company that the defect will not
be repaired.
1.84 RESOLVE TIME means elapsed time between the time Ordering
Company contacts Supplier through Supplier's Call Receipt function and the time
Ordering Company is supplied a permanent solution.
1.85 RESPOND means an engineer has contacted
Ordering Company
regarding a particular Assistance Request.
1.86 RESTORE means that the Product or major feature of the
Product is temporarily operative, but a permanent resolution has not yet been
provided. Restore may mean that a software patch has been provided to
temporarily correct the problem, or a workaround has been implemented.
1.87 SCOPE OF WORK means the agreed upon scope of work set
forth in an executed Supplemental Agreement (e.g., for Customer Connectivity) or
Work Order. The Scope of Work may include: field and building surveys, route
planning, Make Ready Coordination, design engineering, material logistics, civil
construction, placing, splicing, Acceptance Testing, work print, as built and
OSP records generation, and project management.
1.88 SERVICE means the services provided by Supplier with
respect to or independent from Supplier's Products and Software and the
operation of Ordering Company's business including, but not limited to, any type
of: (1) professional services including architecture planning or design,
consulting, program management, system integration and testing/verification; (2)
network engineering services including preparation of equipment Specifications,
preparation and updating of office records, and data creation/data management
services; (3) installation and equipment removal; (4) outside plant
engineering/construction services and cable mining; (5) maintenance, repair,
exchange/replacement, customer technical support, help desk, and diagnostic
services; (6) software development; (7) initial site/new start, migration,
trials, provisioning, retrofitting and update/upgrade services; (8) training in
any form; (9) logistics (transportation, warehousing staging, etc.); and (10)
such other services as Supplier may offer and Ordering Company may purchase from
time to time.
1.89 SERVICE PERFORMANCE REPORTS (SPR) means reports that
validate the agreed to Respond, Restore, and Resolve Ordering Company's request
for Ordering Company Technical Support.
1.90 SERVICE RESTORATION TIME means the elapsed time between
the time Ordering Company contacts Supplier through Supplier's Call Receipt
function and the time the system is restored to service.
1.91 SEVERITY LEVEL means the condition of the system when
Ordering Company makes an Assistance Request.
1.92 SEVERITY LEVEL ONE means the condition which exists when
the system is inoperative and Ordering Company's inability to use the Product
has a critical effect on Ordering Company's operations. The condition is
generally characterized by complete system failure and requires immediate
resolution or correction.
1.93 SEVERITY LEVEL TWO means the condition which exists when
the system is partially inoperative, but the system is still usable by Ordering
Company. The inoperative portion of the Product severely restricts Ordering
Company's operations but has a less critical effect than a Severity Level One
condition.
1.94 SEVERITY LEVEL THREE means the condition which exists
when the system is usable by Ordering Company, but with limited functions. The
condition is not critical to overall Ordering Company operations and does not
severely restrict such operations.
1.95 SEVERITY LEVEL FOUR means the condition which exists when
the system is usable and a means of circumventing the condition has been found.
This condition does not materially affect Ordering Company's operations.
1.96 SITE means all Work areas where any Work is required to
be performed as set forth in the Agreement Documents, excluding permanent
locations of Supplier and its suppliers and subcontractors.
1.97 SOFTWARE means a computer program consisting of a set of
logical instructions and tables of information which guide the functioning of a
central processing unit; such program may be contained in any medium whatsoever,
including hardware containing a pattern of bits representing such program, but
the term "Software" does not mean or include such medium.
1.98 SOFTWARE PRODUCT means the Software that Ordering Company
has been granted a license to use by Supplier.
1.99 SOFTWARE PRODUCT DEFECT means an error condition that
causes the Software Product to fail to operate in compliance with Supplier's
documented Specifications available at time of Licensed Software
Product sale.
1.100 SOFTWARE PRODUCT UPDATES means changes to the original
licensed Software Product and third party Software to correct defects or provide
accommodations not originally included in Supplier's documented Specifications
available at the time of the Software sale. Software Product Updates include
both corrections and accommodations requested by customers as well as
corrections and accommodations requested by other Ordering Companies. Software
Product Updates may be distributed through point issue releases on magnetic
media or Broadcast Warning Messages (BWM's), Software Updates (SU's), or other
on-line delivery mechanism.
1.101 SOURCE CODE means any version of Software incorporating
high-level or assembly language that generally is not directly executable by a
processor.
1.102 SPECIAL CONDITIONS means detailed provisions in the
Specifications referred to under Section 11.23, Application for Payment; Terms
of Payment, pursuant to which Supplier can petition AT&T for additional
compensation.
1.103 SPECIFICATIONS means the technical specifications for
particular Products, Software and Services of Supplier or its vendor furnished
hereunder.
1.104 SPECIFICATIONS OR STANDARDS as referred to in Article 11
means the Specifications for outside plant construction as agreed upon by the
parties for each project, Work Order, or Supplemental Agreement. (For Customer
Connectivity, the August 1992 Lightguide Cable Systems Outside Plant Standards
Handbook and the Specifications set forth in AT&T's standard construction
Specifications, each as amended and agreed by parties.) All projects, Work
Orders and Supplemental Agreements are subject in addition to the work practices
set forth in Section 11.18, ARCHAEOLOGICAL SITES; ENVIRONMENTAL PROTECTION.
1.105 START DATE means the date on which Supplier and AT&T
agree in a Work Order or in some other writing that the Work is
due to begin.
1.106 SUBCONTRACTOR means a person or
organization who has a
direct contract with Supplier.
1.107 SUPPLEMENTAL AGREEMENT means a contemporaneous or
subsequent purchase agreement between an Ordering Company and Supplier which
incorporates all of the terms of this Agreement.
1.108 SUPPLEMENTARY SPECIFICATIONS means mutually agreed upon
Specifications which, by modifying or supplementing the Specifications, describe
conditions unique to a particular project.
1.109 SUPPLIER means Lucent Technologies Inc.
1.110 SUPPLIER'S INFORMATION means certain material and
technical or business information, owned or controlled by Supplier or any of its
Affiliates, relating to the operation of Products or Software, materials used in
the provision or manufacture of Products and Software, or relating to Supplier's
Services. The term also means and includes any part, component and associated
information developed prior to the effective date of this Agreement by the
business units and other organizations which compose Supplier, regardless of
whether such information was originally disclosed to AT&T or an Ordering Company
in written or other tangible form.
1.111 SUPPLIER'S MANUFACTURED PRODUCT means a Product
manufactured by Supplier or manufactured by an original equipment manufacturer
to Supplier's Specifications. Supplier's Manufactured Product includes Vendor
Items that are embedded in Products manufactured by Supplier.
1.112 SUPPORT SERVICES means Supplier's assistance at
Supplier's location analyzing the applicable Software or Hardware/Firmware
problem (as defined in the Order), remedying defects, and handling service calls
reported by Ordering Company through the Call Receipt function. Support Services
may be purchased by Ordering Company pursuant to the provisions set forth in
this Agreement.
1.113 SYSTEM means the integrated Products and
Software as
described in associated Specifications.
1.114 UNIT ADJUSTING PRICE means a Price in the Work Order,
Change Order or Supplemental Agreement that compensates Supplier on a unit basis
for deviations from the defined scope of Work. The number of adjusting units
will subsequently be determined from the engineered Drawings or actual
occurrences as accepted by the Engineer.
1.115 UNIT PRICE means a Price in the Work Order or
Supplemental Agreement for a defined scope of Work on a unit basis. The number
of units will subsequently be determined from the engineered Drawings
1.116 UNITED STATES means the fifty (50) states, District of
Columbia, Puerto Rico and the United States territories.
1.117 USE with respect to Licensed Materials means loading the
Licensed Materials, or any portion thereof, into a processor for execution of
the instructions and tables contained in such Licensed Materials.
1.118 VENDOR ITEM means a Product or partial assembly of
products furnished by Supplier, but not manufactured by Supplier but supplied
pursuant to its procurement specifications. An item ceases to be a Vendor Item
when it becomes embedded in a Supplier's Manufactured Product.
1.119 WARRANTY PERIOD means the period of time listed in the
respective Warranty clauses herein for Products, Licensed Materials or Services
which, unless otherwise stated, commences for Products and Licensed Materials on
the earlier of the date of shipment, or, if installed by Supplier, on the
Acceptance Date, and for Services, commences on the Acceptance Date of the
Service.
1.120 WORK is defined in Section 11.2, WORK; SUPPLIER; MATERIALS; PERMITS;
RAILROADS; SECURITY, below.
1.121 WORK ORDER means the specific Outside Plant Services
requested by Ordering Company pursuant to this Agreement. Work Order shall
contain the information set forth in Section 11.5, WORK ORDERS;
CHANGES, below.
ARTICLE IA
NATURE OF AGREEMENT
1A.1 PURPOSE AND SCOPE OF THIS AGREEMENT. The purpose of this
Agreement is to permit Supplier to provide and Ordering Company to receive
Supplier's Products, Licensed Materials, and Services. This Agreement shall
govern all transactions pursuant to which Supplier provides Products, Licensed
Materials and Services to AT&T and Ordering Companies. AT&T and Supplier will
develop a template no later than June 30, 1996 for use when AT&T or Ordering
Company is ordering Products, Licensed Materials and Services from Supplier
pursuant to this Agreement for use outside the United States. This template will
be used as the starting point for Supplemental Agreements to address such
purchases and will address the additional country and customer-specific terms
and requirements with the particular transaction. This Agreement shall govern
Supplier's sale and licensing to Ordering Companies of Supplier's Products,
Licensed Materials and Services for Ordering Companies' internal business uses
only, and does not permit AT&T to resell or sublicense any Products, Licensed
Materials or Services provided hereunder as a distributor of same. However, this
Agreement, including any restrictions on use, resale and transfer is not
intended to prohibit Ordering Company from reselling or transferring Products
and Licensed Materials no longer needed for the operation of its business,
provided, that, in the case of Software, such transfers are made in accordance
with the provisions of Article 9. All terms and conditions governing resale or
sublicensing of Supplier's Products, Licensed Materials and Services as a
distributor shall be addressed in a separate agreement.
This Agreement is organized in the following manner: Part 1 sets forth the
common terms and conditions that apply to all sales and licenses executed
pursuant to this Agreement, unless otherwise stated in Part 2. Part 2 sets forth
the additional terms and conditions which govern Supplier's provision of network
infrastructure Products, Licensed Materials and Services, other than such items
currently provided by Supplier's Business Communications Systems business unit,
previously known as "GBCS," ("BCS"). Part 3 sets forth the additional terms and
conditions which govern Supplier's provision of Products, Licensed Materials and
Services provided by BCS.
1A.2 STATEMENT OF ASPIRATIONS. In an effort to ensure that the
parties remain fully focused upon their shared objectives and aspirations, the
parties agree that the following principles shall govern their work together
during the term of this Agreement:
(a) Both parties want Lucent Technologies Inc.
to provide AT&T
with Products, Licensed Materials and Services that confer
significant offer
differentiation, premium value and operating cost reduction
consistent with
AT&T's brand equity, and shall work together so that Lucent
Technologies Inc.
may assist AT&T in this manner;
(b) The parties recognize that Supplier's pricing of Products,
Licensed Materials and Services must balance two fundamental requirements:
AT&T's requirement for the lowest possible operating costs and Supplier's
requirement for adequate return on and recovery of investment;
(c) The parties shall at all times take care to conduct
themselves with the highest integrity, to respect all individuals, and to obtain
the maximum benefits of a shared end user customer focus, effective teamwork and
the parties' innovativeness; and
(d) The parties desire to maintain a
relationship that is
warm, open and mutually profitable.
1A.3 VOLUME COMMITMENT. (a) AT&T commits that the aggregate
amount paid by Ordering Companies (including AT&T Wireless Services Inc.) to
Supplier during the calendar years 1996, 1997, and 1998 for Products, Licensed
Materials, and Services, pursuant to this Agreement, any Supplemental Agreement,
any other agreement or otherwise, between an Ordering Company and Supplier for
Supplier's provision of Products, Licensed Materials or Services to an Ordering
Company, will total at least three billion dollars ($3,000,000,000). If that
commitment is not fulfilled by December 31, 1998, Supplier shall, in January
1999, bill AT&T a carrying charge equal to the shortfall at December 31, 1998,
multiplied by the Prime Rate (as defined in the Separation and Distribution
Agreement) plus two percent (2%). Thereafter, Supplier shall, each month, bill
AT&T a carrying charge equal to the shortfall, if any, at the end of the
preceding month, multiplied by 1/12 multiplied by the Prime Rate plus two
percent (2%). Such billing shall continue until the three billion dollar
($3,000,000,000) commitment is fulfilled. AT&T will pay these bills as set forth
in Section 3.2, INVOICES AND TERMS OF PAYMENT. The remedy in this Section 1A.3,
VOLUME COMMITMENT, is
Supplier's exclusive remedy for AT&T's failure to fulfill the three billion
dollar ($3,000,000,000) volume commitment.
(b) AT&T expects, but does not commit, that Products, Licensed
Materials and Services in the amount of one billion three hundred million
dollars ($1,300,000,000), out of the three billion dollar($3,000,000) total
volume commitment, will be ordered in 1996. Therefore, the shortfall billing and
payment arrangement set forth in subparagraph (a) above does not apply to
failure to meet this expectation by the end of 1996.
(c) Prior to the Closing Date (as defined in the Separation
and Distribution Agreement), AT&T shall deliver to Supplier as advance payment
for purchases of Products, Services, Software, or Licensed Materials an amount
equal to five hundred million dollars ($500,000,000). Commencing on January 1,
1997, Supplier shall apply a portion of such amount as a credit against any
undisputed invoiced amounts due and payable to Supplier from AT&T or, if AT&T
shall so specify at any time, from any other Ordering Company, on or after
January 1, 1997, in full satisfaction of all obligations of AT&T or any such
Ordering Company then due in connection therewith. Supplier shall continue to so
apply such advance payment as a credit against such undisputed invoices until
fully applied.
1A.4 GOVERNING TERMS. (a) Current Order Performance: On the
Effective Date of this Agreement, Supplier shall be in the process of performing
several Ordering Company orders, some of which have not been the subject of
written Orders and purchase agreements. In addition, Supplier shall be following
many existing engineering, installation and maintenance practices and procedures
that have been developed mutually by Supplier and Ordering Company but have not
been completely documented. The parties intend that Supplier shall continue to
provide the same Products, Services and Licensed Materials which Supplier is
providing or has agreed to provide each Ordering Company (hereinafter "Pending
Orders") subject to the availability of third party components and provided that
Ordering Company shall retroactively compensate Supplier for any Products,
Licensed Materials and Services provided by Supplier without compensation at the
prices and rates set forth in any mutual agreements entered into. Such
retroactive compensation shall begin no earlier than the Effective Date and
shall be capped at twenty million dollars ($20,000,000) per month. Supplier
shall not be liable for any injury to Ordering Company that results from
Supplier's employees and/or contractors failure to be aware of practices and
procedures that had not, at the time of Supplier's actions, been reduced to
writing. Supplier and Ordering Company recognize that the existing practices and
procedures will need to be reevaluated in light of the restructure of AT&T. As
part of this reevaluation,
Supplier and Ordering Company may decide to continue existing practices and
procedures or one party may notify the other that it wishes to change or
eliminate certain practices or procedures.
The parties agree to use their best efforts to identify any other Products,
Licensed Materials and Services provided by Supplier to Ordering Company that
require commercialization and to formalize such undocumented arrangements in a
commercially reasonable manner that is consistent with the terms and conditions
contained herein no later than March 31, 1996. The parties acknowledge that such
formalization and modification of those arrangements may result in changes in
the terms and conditions pursuant to which such items are provided. All
agreements will be reduced to writing which will govern transactions between
Supplier and all Ordering Companies, unless otherwise agreed to. If the parties
are unable to negotiate a satisfactory resolution, the dispute resolution
provisions of Article 5A herein shall apply. Services not currently performed by
Supplier are not covered under this Section 1A.4, GOVERNING TERMS, and will be
covered under separate Supplemental Agreements.
With respect to Pending Orders, this Agreement is incorporated by reference,
however, in the event of conflict between the terms and conditions of this
Agreement and the terms and conditions of Pending Orders, the terms and
conditions of Pending Orders shall prevail over the terms and conditions of this
Agreement until such time that the Pending Orders are formalized, terminated or
expired.
(b) Future Procurements: All future Orders and Supplemental
Agreements pursuant to which Supplier provides Products, Licensed Materials and
Services to AT&T Company shall be deemed to incorporate and be subject to the
terms and conditions of this Agreement, regardless of whether any such Order or
Supplemental Agreement expressly incorporates this Agreement by reference,
unless such Order or Supplemental Agreement expressly provides that it is not
subject to this Agreement. To the extent that any exhibit to this Agreement or
any document other than a Supplemental Agreement conflicts with the body of this
Agreement, the body of this Agreement shall prevail over such exhibit or other
document. To the extent that a Supplemental Agreement conflicts with this
General Purchase Agreement, the Supplemental Agreement shall prevail over the
body of this Agreement. To the extent that the Supplemental General Purchase
Agreement, No. LC3757D, conflicts with either or both of this Agreement and a
Supplemental Agreement, the Supplemental General Purchase Agreement shall
prevail over those other agreements.
1A.5 TERM OF AGREEMENT. This Agreement shall become effective
on the Effective Date and shall continue in effect for a period of five (5)
years. The term of this Agreement shall thereafter be automatically extended for
additional one (1) year periods unless either party provides the other party one
(1) year's prior written notice of its desire to permit this Agreement to expire
without further extension of its term, in which event this Agreement shall
expire on the day before this Agreement would otherwise be automatically
extended. The amendment or termination of this Agreement shall not affect the
obligations of an Ordering Company or Supplier under any then existing Order or
Supplemental Agreement issued under this Agreement.
1A.6 TRANSITION PERIOD. Although all terms of this Agreement
are effective on the Effective Date, the parties recognize that complete
implementation of certain terms depends upon the development and deployment of
necessary practices and systems. Those terms include, but are not limited to:
- Section 2.1 - Orders - Section 2.2 -
Order Acceptance
Section 2.6 - Order Cancellation and Holds
- - Section 3.1
Pricing - Section 3.2 - Invoices and Terms of
Payment Section
5.1 - Ordering Companies Remedies - Section
5.2 Supplier
Performance - Section 6.21 - Record Retention
- - Section 8.16
Planning Information for Orders for
Commercially Available Products
Both parties agree to use their reasonable best efforts to develop and deploy
those practices and systems underlying these and other terms as promptly as
possible, but not later than March 29, 1997. The inability of either party to
comply with any of these terms as a result of not having developed and deployed
such practices and systems prior to March 29, 1997, will not be construed a
breach of contract, provided, however, that if such Supplier's delay in
developing and deploying necessary practices and systems delays affording
Ordering Company the benefits of the Pricing Agreement, Supplier shall afford
those benefits to Ordering Company, as promptly as possible, retroactive to the
Effective Date.
1A.7 PURCHASES BY AT&T'S AFFILIATES. This
Agreement shall
govern purchases from Supplier by AT&T, its Affiliates and
Ordering Companies,
but shall not govern purchases by other entities.
1A.8 ADDITIONAL TECHNOLOGY RIGHTS. Supplemental Agreements may
provide, on a case-by-case basis, for Ordering Company's ownership (up to and
including 100% ownership) of specified intellectual property rights in
technology newly developed by Supplier solely on behalf of Ordering Company. In
the event technology is licensed by Supplier to Ordering Company, Supplier may
agree to grant Ordering Company (a) the right to make, have made, use, sell,
modify, offer for sale or import specified Products and provide specified
Services and (b) the title and intellectual property rights to certain
modifications and resulting derivative works made by Ordering Company.
ARTICLE II
ORDERING AND DELIVERY
2.1 ORDERS. (a) All Orders, including electronic
Orders, shall
contain the information necessary for Supplier to fill the Order.
Such
information shall include, but not be limited to:
(i) Ordering Company's requested ship date or
requested complete date;
(ii) The date of the Order;
(iii) A reference to this Agreement,
including its
contract number and any applicable firm price
quote, Supplemental
Agreement, or other Supplier pricing information;
(iv) The Price of the item being purchased or
licensed or the means by which the Price is derived;
(v) A complete list of the
Products, Licensed
Materials and Services requested, specifying, as
applicable, quantity,
Supplier's model number, the type and periods of any
maintenance or
consulting Service ordered (including Service Start Date,
a description
of the Services to be provided and, if applicable,
the items to be
maintained), Supplier's Specification number (by
issue or generic
number), Telephone Equipment Order ("TEO") or
other agreed upon
Specification or other Supplier identification;
(vi) The address or location to
which Products or
Licensed Materials are to be delivered or the location
where Services
are to be performed including a description, the
serial number (if
available) and the location of any Designated
Processor for which
Licensed Materials are being furnished; and
(vii) The address to which Supplier's
invoice is to
be sent electronically.
(b) Unless otherwise agreed in writing, the planning intervals
for engineering, delivery and installation for commercially available Products
to be provided by Supplier shall be as set forth in Exhibit 2-1, which will be
updated quarterly by mutual agreement of the parties. These intervals are for
planning purposes only; Supplier's scheduled delivery and performance dates set
forth in (i) an accepted Order for Products; or (ii) for Licensed Material, or
an accepted Order or the appropriate Supplemental Agreement are firm commitments
and shall govern the parties' performance. Unless agreed otherwise in writing,
no provision, term or condition, or data on any Order or contained in any
document attached to or referenced in any Order, Supplemental
Agreement, or any other subordinate document (such as a shipping release) shall
be binding, except data necessary for Supplier to fill the Order. Electronic
Orders shall be binding on Ordering Company notwithstanding the absence of a
signature. All schedules and requested dates are subject to Supplier's
concurrence.
(c) For construction Services, Ordering Company shall place
Orders at an agreed upon time period prior to the applicable construction start
date. In the event that Ordering Company is not ready to receive shipment on the
scheduled delivery date, Ordering Company shall reimburse Supplier for any
reasonable warehousing, handling, hoisting and idle time costs sustained during
the delay period.
2.2 ORDER ACCEPTANCE. All Orders are subject to acceptance by
Supplier. Supplier shall have twenty-one (21) business days in 1996 and
thereafter ten (10) business days after the receipt of the Order in which to
notify Ordering Company of those aspects of Ordering Company's Order which
Supplier is unable to accept and to provide Ordering Company Supplier's firm
schedule Completion Date for the Order. Failure to provide such notice within
that period shall be deemed acceptance of Order. Ordering Company or Supplier
may modify the terms or content of any Order if such changes are mutually agreed
to and documented in writing.
2.3 CHANGES IN ORDERING COMPANY'S ORDERS. Should Ordering
Company wish to obtain information sufficient to permit it to assess whether to
submit an Order adding, deducting or deviating from a prior Order (hereinafter a
"Change Information Request"), it shall request such information from Supplier
in writing. As promptly as reasonably possible after its receipt of a Change
Information Request, Supplier shall submit a proposal to Ordering Company which
includes any increases or decreases in Supplier's Price or changes in the
delivery or work schedule for the existing and new Orders necessitated by the
change. Unless Supplier receives an Order to implement such change from Ordering
Company within twenty-one (21) calendar days of Ordering Company's receipt of
Supplier's proposal, Ordering Company shall be deemed not to have authorized the
change and Supplier shall remain obligated to perform all previously ordered
work in accordance with (a) the governing Order (for Products) or (b) for
Licensed Material, the governing Order or appropriate Supplemental Agreement.
Changes by Ordering Company to an accepted Order shall be treated as a separate
Order only if such change materially affects Supplier's ability to meet its
obligations under the original Order, in which case any Price (or discount, if
applicable), shipment date or Services Completion Date provided by Supplier with
respect to such original Order shall be subject to change.
2.4 CHANGES IN PRODUCTS BY SUPPLIER. Any change that Supplier
proposes to the Product furnished hereunder and the documentation related
thereto would be subject to the Change Notice Process attached hereto as Exhibit
2-2.
2.5 ORDER CANCELLATION AND HOLDS.
(a) CANCELLATION FOR CONVENIENCE.
(i) Ordering Company may, upon
written notice to
Supplier, cancel an Order, provided that Ordering Company
shall pay the
applicable fees, if any, set forth in Paragraphs (ii),
(iii) and (iv)
below.
(ii) For those Products and
Licensed Materials
canceled prior to shipment that are considered stock
items, Ordering
Company agrees that it shall pay Supplier an Order
cancellation fee
equal to fifteen percent (15%) of the Price or
license fee for such
items.
(iii) For those Products and
Licensed Materials
considered to be customized or non-stock items (1) not
manufactured or
(2) manufactured but not yet accepted, Ordering Company
shall pay a fee
based upon Supplier's incurred expenses (after
adjustment for
recoveries and/or salvage value, if any), including, but
not limited to
de-installation, transportation and associated
general and
administrative expenses, plus a reasonable profit in the
event that the
customized or non-stock items are not ultimately sold
or licensed to
another party within ninety (90) days of cancellation,
provided that
Supplier has made a reasonable attempt to sell or license such items.
(iv) If an Order for Services is
canceled in whole or
in part after execution of such Order and prior to
the scheduled
completion of such Services, Ordering Company agrees
to pay Supplier
the fees due for Services provided (which fees,
depending upon the
specific terms of the agreement, may be based on
the applicable
periodic rates or equal to the percentage of the
contracted project or
period that Supplier has completed multiplied by
the total fee,
excluding expenses, for such project or period) and all
expenses of any
type incurred for performing the Services prior to
the date of
cancellation and any expenses Supplier may incur for
terminating the
Services, including but not limited to:
(A) the cost of materials
(less salvage
value, if any) which have been delivered to the work
site prior to the
date of termination but which have not yet been
incorporated into or
been consumed in performing the Services; plus
(B) the cost of undelivered
materials (less
salvage value, if any) planned for use in performance of
this Agreement
for which irrevocable Work Orders have been placed by
Supplier prior to
the effective date of cancellation; plus
(C) the cost of any other
capital
expenditure that has been incurred in order to perform
the terminated
project and that cannot be re-applied by Supplier to
provide other
Services; plus
(D) the cost to Supplier of
terminating and
settling any subcontracts.
(v) For purposes of this subparagraph
(a), "salvage
value" shall include the proceeds of the sale of
the material to
another Ordering Company and the costs Supplier avoids
as a result of
its reapplying materials to meet other needs of Ordering
Company, the
needs of other customers or its own internal needs
within ninety (90)
days of Order cancellation. Supplier shall make
reasonable efforts to
maximize salvage value. Upon written request,
Supplier will
substantiate such avoided costs.
(b) HOLDS. Ordering Company may issue "holds" on Orders or
suspend performance under this Agreement, in whole or in part, upon written
notice to Supplier and shall compensate Supplier for any incremental expense
(including, but not limited to, warehousing, loss, damage and inventory carrying
costs) incurred. A hold automatically converts to an Order cancellation after
thirty (30) days.
(c) CANCELLATION FOR CAUSE. In the event Supplier shall be in
material breach or default of any of the terms, conditions, or covenants of any
Order or Supplemental Agreement and if such breach or default shall continue for
a period of forty-five (45) days in 1996 and thereafter thirty (30) days after
Supplier's receipt of notice thereof by Ordering Company, then, in addition to
the remedies specified in Section 5.1, ORDERING COMPANIES' REMEDIES, Ordering
Company shall have the right to cancel such Order or Supplemental Agreement,
except to the extent that Products, Licensed Materials or Services have
previously been provided pursuant to such Order or Supplemental Agreement.
(d) SURVIVAL. The obligations of this Section
2.5 shall
survive termination of this Agreement.
2.6 SHIPPING, PACKING AND DELIVERY. (a) Supplier shall, at no
additional charge, pack Products in accordance with its standard practices for
shipments to Ordering Company's locations. Unless instructed otherwise by
Ordering Company, Supplier shall (i) ship Orders as available, but not before
the customer requested ship date, (ii) ship to the destination designated in the
Order, (iii) mark all subordinate documents with the Order number, (iv) enclose
a packing memorandum with each shipment, and when more than one package is
shipped, identify the package containing the memorandum, and (v) mark Ordering
Company's Order number on all packages and shipping papers.
(b) Where, in order to meet Ordering Company's requests,
Supplier packs Products in other than its normal manner, Ordering Company shall
pay Supplier's additional charges for such packing. Absent written agreement
otherwise, Supplier will deliver Products and Licensed Materials to Ordering
Company FOB (free on board) the manufacturing, warehouse or Software
distribution facility of Supplier or its vendor.
(c) Unless otherwise directed by Ordering Company, Supplier
shall (i) ship equipment from its nearest facility or that of its vendor capable
of filling the Order, (ii) use the lowest available rate from Ordering Company's
pre-selected designated carrier (rail, truck or freight forwarder), and (iii)
prepay transportation charges at cost as a separate item on Ordering Company's
invoice when the cost of transportation is to be borne by Ordering Company.
Ordering Company shall promptly pay to Supplier any prepaid transportation
charges. Supplier will provide to Ordering Company a transportation factor card
to be used for estimating transportation rates. Shipping and routing
instructions may be furnished or altered by Ordering Company in writing, subject
to additional charges, if applicable.
(d) Supplier agrees not to deliver Products prior to five (5)
business days before the agreed upon delivery date without Ordering Company's
prior written authorization.
2.7 TITLE AND RISK OF LOSS. Title to and risk of loss to
Products and risk of loss of Licensed Materials shall pass to Ordering Company
upon delivery to Ordering Company. For purposes of this clause, "delivery" shall
mean the point at which Supplier or Supplier's supplier or agent turns over
possession of the Product or Licensed Materials to Ordering Company, Ordering
Company's employee, Ordering Company's pre-selected designated carrier, Ordering
Company's warehouse, or other Ordering Company's agent and not necessarily the
final destination shown on the Order. Ordering Company shall notify Supplier
promptly of any claim with respect to loss which occurs while Supplier has the
risk of loss and shall cooperate in every reasonable way to facilitate the
settlement of any claim.
ARTICLE III
PRICES AND PAYMENT
3.1 PRICES. (a) To the extent Ordering Company's Order is
subject to a firm price quotation made by Supplier, prices, fees, and charges
("Prices") shall be as set forth in Supplier's firm price quotation or as
specified in the governing Supplemental Agreement. In all other cases, Prices
shall be as set forth in the Product Information Catalog Extraction System
("PRICES") which provides toll free access to Supplier's complete Product
listing or in ELIB (electronic library information bulletin) or its successor
and will be provided in electronic media. For firm price quotations, Prices
shall be valid for thirty (30) days from the date of the quotation. Prices shall
be applied based upon the date Supplier receives Ordering Company's Order. Both
parties will work together in the first quarter of 1996 to develop a plan for
the migration to PRICES.
(b) The database for pricing of all Standard
Service Units
("SSU's") Products and Services is Service Unit Dictionary System
("SUDS").
(c) Where Supplier is not performing installation, all
expenses after shipment from Supplier's manufacturing or software distribution
facility shall be paid by Ordering Company. If Supplier pays any of such
expenses, they shall be borne by Ordering Company plus
a fifteen percent (15%) administration fee. Supplier will not incur such
expenses unless it is requested to do so in writing by Ordering Company (which
request shall constitute Ordering Company's agreement to pay Supplier for such
expenses).
(d) Notwithstanding the foregoing, if Supplier is delayed from
completion of an Order due to any change requested by Ordering Company or as a
result of delay by Ordering Company in furnishing information or in performing
its obligations (including site preparation), Supplier's prices are subject to
change to the extent that Supplier incurs costs for such delay.
(e) Unless expressly stated in writing, Supplier's prices are
exclusive of charges for transportation and other related Services, and any
sales or other tax or duty which Supplier may be required to collect or pay upon
the ordered transaction. Supplier shall include these items as separate items in
its invoiced prices to Ordering Company. Ordering Company shall be responsible
for prepaid transportation paid by Supplier. Billable premium transportation
will be used only with Ordering Company's concurrence.
(f) Supplier may amend its pricing schedules once every six
(6) months by providing sixty (60) days' prior written notice. Unless the
parties agree otherwise in writing, Supplier's unaccepted firm price quotations
may be amended on ten (10) days' written notice. Such changes in Supplier's
pricing shall apply only to Orders received on or after the effective date of
such price changes.
(g) In addition to the applicable Price, reasonable expenses
for travel and living of Supplier's personnel while on travel assignments
outside the local area, approved by Ordering Company, shall be reimbursable.
Such approval may be written or oral and on an individual case basis or for a
category of such assignments. If oral approval is given, it shall be followed
with a written approval in ten (10) days. Supplier shall submit invoices for
reimbursable travel and living expenses promptly upon completion of the travel
events. Supplier shall list the travel and living charges as separate items on
each invoice. Supplier shall retain all records in accordance with IRS standards
of such charges for a period of not less than one (1) calendar year after the
expiration of the travel assignment. Upon reasonable request in the event of a
question, Supplier shall make such records available for inspection by Ordering
Company.
3.2 INVOICES AND TERMS OF PAYMENT.
(a) FOR CALENDAR YEAR 1996. Invoices and terms of payment
shall be mutually agreed to by both parties no later than March 1, 1996. The
intent is that both parties will plan a movement toward the terms of Section
3.2(b), INVOICES AND TERMS OF PAYMENT, and away from the current practice,
NS/NSD Payment and Invoicing Policy dated January 30, 1995. The principles for
1996 which the parties will strive to meet will include (i) the provision of a
single bill per order on last shipment; (ii) such bill shall not be submitted
manually; (iii) billing upon shipment for Products, Licensed Materials
(including transportation charges and taxes, if applicable) and Engineering,
except engineering Services associated with
outside plant construction; (iv) billing for Installation upon Installation
Complete Date; and (v) implementation on or before April 1, 1996.
(b) AFTER 1996.
(i) Products, Licensed Materials (including transportation
charges and taxes, if applicable), and Engineering Services, except engineering
Services associated with outside plant construction, shall be billed by Supplier
when last shipment on an Order is made, or as soon thereafter as practical;
(ii) Installation shall be billed upon
Acceptance;
(iii) Engineering Services associated
with outside
plant construction shall be billed as performed or, at Supplier's
discretion, on
a monthly basis;
(iv) Consulting, design, outside plant
construction,
system integration and program management Services shall be billed, as mutually
agreed to by the parties (1) on a progress basis based on the percentage of job
completed up to eighty-five percent of the charge or, (2) on a monthly basis.
Final billing for such Services will be invoiced when such Service is completed;
(v) Unless otherwise agreed to,
Maintenance Services
shall be billed monthly, in advance. Supplier will work with Ordering Company to
minimize the number of bills Ordering Company receives each month for such
Services. If Ordering Company requests quarterly or annual invoicing, such
invoicing shall be rendered in advance of such Services;
(vi) Payment for generally available Licensed
Material is payable in full upon delivery to First Field
Application; and
(vii) Software and/or other technology
development
for small projects (i.e. less than or equal to fifteen million dollars
($15,000,000) and less than or equal to twelve (12) months) shall be billed as
follows: ten percent (10%) at commitment (i.e., signing of contract), forty
percent (40%) upon delivery of the Software to the Integrated Test Network (if
the Software will not be tested in the ITN, this forty percent (40%) payment
shall be due upon delivery to the First Field Application), and fifty percent
(50%) when Software is ready for deployment, or thirty (30) days after
Acceptance of the Software in the First Field Application, whichever occurs
sooner. Billing for Software and/or other technology development for projects
other than small projects as defined in the preceding sentence, shall be
determined on a case by case basis. The parties will conform the Supplemental
Agreements to this Section 3.4(b)(vii) by March 31, 1996.
(c) Ordering Company shall pay such invoiced amounts, less any
items known then to be disputed items, within thirty (30) days of the date of
Supplier's invoice. Ordering Company shall notify Supplier of any disputed
invoice within eighteen (18) months from the date of the invoice. Such notice of
dispute shall not excuse Ordering Company from
timely payment of the undisputed portion(s) of any invoice containing a disputed
portion. Supplier may apply any credit which remains outstanding in favor of
Ordering Company to the oldest undisputed invoice which remains in Ordering
Company's account, unless directed otherwise by Ordering Company.
(d) Unless otherwise agreed, payment of all amounts contained
in this Agreement shall be made in United States dollars and invoices shall be
rendered in the same currency. Unless otherwise agreed to by Supplier and
Ordering Company, payments shall be made by electronic transfer to the account
and address indicated by Supplier and shall reference the invoice(s) to which
they relate.
(e) AT&T guarantees payment in United States dollars of the
obligations of Ordering Companies that are not Affiliates of AT&T on any Orders
placed pursuant to this Agreement. Payment shall be made by AT&T within thirty
(30) days after receipt of invoice of a guaranteed payment. Such invoice will
only be issued to AT&T after Supplier has made reasonable efforts to obtain
payment from Ordering Company. Ordering Companies that are Affiliates of AT&T
shall bear sole responsibility for the performance of their obligations
hereunder.
3.3 TAXES. (a) Ordering Company shall bear all taxes, levies,
duties and other similar charges (and any related interest and penalties),
however designated, (herein referred to as "Tax") imposed as a result of the
existence or operation of this Agreement, Order or any Supplemental Agreement,
including but not limited to any tax which Ordering Company is required to
withhold, collect or deduct from payments to Supplier, except (i) any tax
imposed upon Supplier in a jurisdiction outside the United States if such tax is
allowable as a credit against the United States income taxes of Supplier; and
(ii) any net income tax imposed upon Supplier by the United States or any
governmental entity within the United States proper (the fifty (50) states and
the District of Columbia including, but not limited to counties, municipalities
and other localities). In order for the exception contained in (i) to apply,
Ordering Company must furnish Supplier with such evidence as may be required by
United States taxing authorities to establish that such Tax has been paid, if
any, so Supplier may claim the credit.
(b) If Ordering Company is required to bear a tax pursuant to
paragraph (a) above, Ordering Company shall pay to Supplier or the appropriate
government entity or taxing authority, such Tax and other charges and any
additional amounts as are necessary to ensure that the net amounts received by
Supplier after all such payments or withholdings equal the amounts to which
Supplier is otherwise entitled under this Agreement as if such Tax or other
charges did not exist.
(c) If Ordering Company is exempt from any Tax, Ordering
Company shall provide Supplier with all required documentation necessary to
establish Ordering Company's exempt status. Ordering Company hereby agrees to
indemnify Supplier from any Tax, including penalties and interest, resulting
from Supplier's reliance on Ordering Company's claim of exempt status.
(d) If Ordering Company disputes in good faith the
applicability of any Tax imposed as a result of the existence or operation of
this Agreement, Ordering Company, at its own expense and in its own name, may
contest the taxing jurisdiction of the disputed Tax. In the event the applicable
law requires that such contest must be taken in the name of Supplier only,
Supplier shall in good faith and with due diligence at Ordering Company's sole
expense contest the imposition of such Tax provided that (i) Supplier will not
be required to pursue such contest if the action will result in a lien against
Supplier for which Ordering Company has not adequately indemnified Supplier or
(ii) will result in a penalty being assessed against Supplier for which Ordering
Company has not adequately indemnified Supplier.
ARTICLE IV
INTELLECTUAL PROPERTY RIGHTS
4.1 USE OF INFORMATION. (a) All technical and business Information
disclosed by one party to the other subsequent to the execution of this
Agreement in whatever form recorded which is marked "proprietary" or
"confidential" or bears a legend or notice restricting its use, copying, or
dissemination or, if not in tangible form, is described as being proprietary or
confidential at the time of disclosure and is subsequently summarized in a
writing so marked and delivered to the receiving party within thirty (30) days
of disclosure to the receiving party shall remain the property of the furnishing
party. Similarly, all technical and business Information disclosed by one party
to the other party prior to the execution of this Agreement and described at the
time of disclosure by the furnishing party as being proprietary or confidential
or known by the party receiving disclosure of such Information to be proprietary
or confidential shall remain the property of the furnishing party (regardless of
whether it is ever recorded in tangible form).
(b) The furnishing party grants the receiving party the right to use
such Information only as follows: Such Information (i) shall not be reproduced
or copied, in whole or part, except for use as authorized in this Agreement; and
(ii) shall, together with any full or partial copies thereof, be returned or
destroyed when no longer needed. Supplier shall use Ordering Company's
Information only for the purpose of performing under this Agreement, and
Ordering Company shall use Supplier's Information only (i) to order Products,
Licensed Materials or Services; (ii) to evaluate Supplier's Products, Licensed
Materials or Services; or (iii) to install, operate and maintain the particular
Products or Licensed Materials for which such Information was originally
furnished. Unless the furnishing party consents in writing, such Information,
except for that part, if any, which was previously known to the receiving party
free of any confidential obligation, or which becomes generally known to the
public through acts not attributable to the receiving party, or which a
receiving party receives from a third party without restriction, or which is
independently developed by the receiving party, shall be held in confidence by
the receiving party. The receiving party may disclose such Information to other
persons, upon the furnishing party's prior written authorization, but solely to
perform acts which this clause expressly authorizes the receiving party to
perform itself and further provided that
such other person agrees in writing (a copy of which writing will be provided to
the furnishing party at its request) to the same conditions respecting use of
Information contained in this clause and to any other reasonable conditions
requested by the furnishing party. The contents of this Agreement are
confidential and shall not be disclosed by either party to third parties,
without the prior written agreement of both parties hereto, except to the extent
required by applicable law, a court or regulatory agency of competent
jurisdiction.
(c) Each party shall be liable to the other for damages
resulting from violation of this Section 4.1. Those damages shall be unlimited
as to nature and limited as to amount to thirty million dollars ($30,000,000)
per occurrence.
4.2 INFRINGEMENT AND MISAPPROPRIATION. (a) In the event of any
claim, action, proceeding or suit by a third party against Ordering Company
alleging an infringement of any patent, copyright, trademark or misappropriation
of a trade secret recognized in any jurisdiction where an Ordering Company may
lawfully use or operate Products or Licensed Materials purchased hereunder, or
if by reason of the use, in accordance with Supplier's Specifications, in any
such jurisdiction of any Products or Licensed Materials furnished by Supplier to
an Ordering Company under this Agreement, Supplier, at its expense, shall defend
Ordering Company, subject to the conditions and exceptions stated in Paragraphs
(b), (c), (d), and (e) below. Supplier shall reimburse Ordering Company for all
costs, expenses or attorneys' fees incurred at Supplier's written request or
authorization, and shall indemnify Ordering Company against any liability
assessed against Ordering Company by final judgment on account of such
infringement or violation arising out of such use. In no event shall Supplier be
liable for Ordering Company's consequential damages.
(b) If Ordering Company's use is enjoined or in Supplier's
opinion is likely to be enjoined, Supplier shall, at its expense use its
reasonable best efforts, to either (i) replace the enjoined Product or Licensed
Materials furnished pursuant to this Agreement with a substitute free of any
infringement; (ii) modify it so that it will be free of the infringement; or
(iii) procure for Ordering Company a license or other right to use it. If none
of the foregoing options is achievable through reasonable best efforts, Supplier
shall remove the enjoined Product or Licensed Materials and refund or credit to
Ordering Company any amounts paid to Supplier therefor less a reasonable charge
for depreciation and any actual period of use by Ordering Company. In no event,
however, shall Supplier's liability under this Section 4.2(b) exceed the
amount(s) paid by Ordering Company to Supplier to purchase the Product or to
obtain the right to use the Licensed Materials which are alleged to violate the
rights described in Paragraph (a) above.
(c) Ordering Company shall give Supplier prompt written notice
of all such claims, actions, proceedings or suits alleging infringement or
violation and Supplier shall have full and complete authority to assume the sole
defense thereof, including appeals, and to settle same. Ordering Company shall,
upon Supplier's request and at Supplier's expense, furnish all information and
assistance available to Ordering Company and cooperate in every reasonable way
to facilitate the defense and/or settlement of any such claim, action,
proceeding or suit.
(d) No undertaking of Supplier under this clause shall extend
to any such alleged infringement or violation to the extent that it: (i) solely
arises from adherence to design modifications, Specifications, drawings, or
written instructions which Supplier is directed by Ordering Company to follow
but only if such alleged infringement or misappropriation does not reside in
material of Supplier's origin, design or selection; or (ii) arises from
adherence to instructions to apply Ordering Company's trademark, trade name or
other company identification; or (iii) resides in equipment or Software which is
furnished by Ordering Company to Supplier for use under this Agreement; or (iv)
arises from use of the Product or Licensed Materials provided by Supplier in
combination with any item not furnished directly by Supplier; or (v) is based
upon modification made by Ordering Company of any Product or Licensed Materials;
or (vi) arises from use of any Product or Licensed Material in a manner for
which it was not designed. In the foregoing cases numbered (i) through (vi),
Ordering Company shall defend and save Supplier harmless, subject to the same
terms and conditions and exceptions stated above, with respect to Supplier's
rights and obligations under this clause.
(e) The liability of Supplier, AT&T and Ordering Company with
respect to any and all claims, actions, proceedings or suits by third parties
alleging infringement of patents, trademarks or copyrights or violation of trade
secrets or proprietary rights because of, or in connection with, any Products or
Licensed Materials furnished pursuant to this Agreement shall be limited to the
specific undertakings contained in this Section 4.2.
4.3 NO PATENT LICENSES. Nothing contained herein shall be
construed as conferring by implication, estoppel or otherwise any license or
right under any patent, except that which is essential to the use of the
Products and/or Licensed Materials as provided by Supplier, and provided however
that this Section 4.3 shall not limit or modify any of the rights and
obligations of the Intellectual Property Agreements or the Supplemental General
Purchase Agreement, No. LC3757D, both executed as of this date as Ancillary
Agreements to the Separation and Distribution Agreement. Supplier shall retain
all ownership rights in all intellectual property used or embodied in Supplier's
Products, Licensed Materials and Service unless otherwise expressed herein, or
in a Supplemental Agreement.
4.4 TRADEMARKS. (a) Subject to the provisions of the Brand
License Agreement, executed as of this date as an Ancillary Agreement to the
Separation and Distribution Agreement, each party shall have the right to use
Products and Licensed Materials which bear the other party's trademarks, trade
name, logos, trade devices, service marks, symbols, and codes, unless otherwise
directed by that party to remove such indicia.
(b) Except as provided in Section s 4.4 (a) above, each party
(including in the case of AT&T, each Ordering Company) shall not use in
advertising or otherwise, any of the other party's trade name, logo, trademark,
trade device, service mark, symbol, code or Specification, or any abbreviation,
contraction, or simulation thereof, without the prior written consent of such
party. Neither party shall claim any ownership therein, and any such usage shall
inure to the benefit of the party which owns such trade name, logo, trademark,
trade device, service mark, symbol, code or Specification.
4.5 PROPRIETARY NOTICE. Ordering Company shall reproduce and
include any Supplier copyright or proprietary notice on all authorized copies of
Licensed Materials. Ordering Company shall also mark all media containing such
copies with a warning that the Licensed Materials are subject to restrictions
contained in an agreement between Supplier and AT&T and that such Licensed
Material are the property of Supplier.
ARTICLE V
RISK MANAGEMENT
5.1 ORDERING COMPANIES' REMEDIES.
(a) An Ordering Company's exclusive remedies and the entire liability
of Supplier, Supplier's Affiliates and their employees and agents, and their
vendors for any claim, loss, damage or expense of Ordering Company or any other
entity arising out of this Agreement or any Supplemental Agreement, or the use
or performance of any Product, Licensed Materials, or Services, whether in an
action for or arising out of breach of contract, warranty, tort, including
negligence, or strict liability, shall be as follows:
(i) For infringement -- the remedy set
forth above in
Section 4.2, INFRINGEMENT AND MISAPPROPRIATION;
(ii) For breach of Section 4.1, USE OF
INFORMATION,
the remedy set forth above in Section 4.1 (c)
(iii) For the performance or nonperformance of Products,
Software, and Services or claims that they do not conform to a warranty--the
remedy shall include those set forth in the applicable "warranty" clause;
(iv) For third party claims against
Ordering Company
for personal injury and property damage for which Supplier is held
liable -- the
remedy afforded by the governing law;
(v) For tangible property damage to
Ordering Company
caused by Supplier's negligence -- the amount of the direct
damages; and
(vi) For Supplier's failure to deliver
Products,
Licensed Materials or Services on Supplier's scheduled delivery date, if
Supplier fails to deliver such Products, Licensed Materials or Services (aa) in
1996 within forty-five (45) days from receipt of written notice from Ordering
Company to Supplier of its failure to deliver such Products, Licensed Materials
or Services on Supplier's scheduled delivery date and (ab) thereafter thirty
(30) days from receipt of such notice, the following remedies shall apply:
(A) Ordering Company may
cancel the Order
without incursion of cancellation fees; and,
(B) Ordering Company may
request and
Supplier will reduce AT&T's volume purchase commitment by an amount equal to the
value of the Order. In addition, if a worldwide supply shortage exists, Ordering
Company may request and, upon such request, shall receive priority on allocation
of such delivered Products, Licensed Materials or Services in a shortage
condition based upon priority criteria agreed to between Supplier and its
affected customers established for the particular shortage condition.
(b) Notwithstanding any other provision of this
Agreement and
except as provided in Section 5.1(a)(ii) above, ORDERING
COMPANIES' REMEDIES,
Supplier, Supplier's Affiliates and their employees and agents, and their
vendors shall not be liable for any consequential damages in the nature of lost
profits, revenues or savings arising out of this Agreement, or the use or
performance of any Product, Licensed Materials, or Services, whether in an
action for or arising out of breach of contract, warranty, tort, including
negligence, or strict liability.
(c) Other than damages pursuant to Section 5.1(a)(ii) above,
ORDERING COMPANIES' REMEDIES, Supplier's total liability for incidental and/or
consequential damages and damages resulting from network outages which must be
reported by Ordering Company to the Federal Communications Commission in
accordance with its rules ("Network Outage(s)") shall not exceed ten million
dollars ($10,000,000) per occurrence with a total not to exceed of thirty
million dollars ($30,000,000) in any one year. This Section 5.1(c) shall survive
failure of an exclusive or limited remedy.
(d) Ordering Company shall give Supplier prompt written notice
of any claim. Any action or proceeding against Supplier must be brought within
thirty-six (36) months after the cause of action accrues.
(e) Supplier acknowledges that a Network Outage will cause
damage to AT&T in an amount impossible to ascertain. Supplier agrees to pay
AT&T, as liquidated damages and not as a penalty, the sum of one million dollars
($1,000,000) per occurrence in the event of a Network Outage caused solely by
Supplier in connection with network infrastructure equipment and one hundred
thousand dollars ($100,000) per occurrence in the event of a Network Outage
caused solely by Supplier in connection with BCS Products, whether or not by
breach of warranty and whether before, during or after any Warranty Period. With
respect to a Network Outage caused solely by Supplier in connection with network
infrastructure equipment, Supplier's total liability for damages for Network
Outages, including the liquidated damages described herein shall be one million
dollars ($1,000,000) per occurrence not to exceed the amount of three million
dollars ($3,000,000) for any calendar year, and Supplier's total liability for
damages for Network Outages for any three (3) year period of this Agreement,
including the liquidated damages described herein, shall be five million dollars
($5,000,000); provided that AT&T is meeting its obligations specified in Section
1A.3, VOLUME COMMITMENT, and the
Pricing Agreement. With respect to Network Outages caused solely by Supplier in
connection with BCS Products, Supplier's total liability under this section
shall be one hundred thousand dollars ($100,000) per occurrence not to exceed
the amount of three hundred thousand dollars ($300,000) for any calendar year
,and Supplier's total liability for damages for Network Outages for any three
(3) year period of this Agreement, including the liquidated damages described
herein, shall be five hundred thousand dollars ($500,000); provided that AT&T is
meeting its obligations specified in Section 1A.3, VOLUME COMMITMENT, and the
Pricing Agreement. If, at any time during the term of this Agreement, AT&T fails
to meet its obligations specified in Section 1A.3, VOLUME COMMITMENT, and the
Pricing Agreement, it shall not be entitled to the remedy in this Section
5.1(e). Any damages paid by Supplier pursuant to this Subparagraph shall be
considered incidental and consequential damages subject to the limitations on
AT&T's right to recover same that are set forth in Section 5.1(c), ORDERING
COMPANIES' REMEDIES. At AT&T's option, AT&T may take all or part of the payment
as a credit against any invoice due or to become due to Supplier. The remedies
available to AT&T under Section 5.1, ORDERING COMPANIES' REMEDIES, and the
foregoing liquidated damages shall constitute AT&T's sole and exclusive remedy
for Network Outages caused to any extent by Supplier during the term of this
Agreement.
5.2 SUPPLIER PERFORMANCE. AT&T and Supplier will jointly
develop requirements for an annual Supplier Merit Award by December 1st of each
year for the following year. For 1996, the requirements are listed in Exhibit
5-1. The award program will provide that if Supplier meets or exceeds either
award performance criteria for receipt of a Supplier Merit Award, AT&T shall:
(a) increase its minimum volume
purchase commitment
for the following year (if the volume purchase commitment in Section 1A.3,
VOLUME COMMITMENT, is in effect), by twenty million dollars ($20,000,000) for
achieving the on-time delivery criteria and ten million dollars
($10,000,000)
for achieving the FCC reportable incidents criteria or
(b) if a volume purchase commitment is
not in effect,
increase its purchase or license of Supplier's Products, Licensed Materials and
Services for the following year by twenty million dollars ($20,000,000) for
achieving the on-time delivery criteria and ten million dollars
($10,000,000)
for achieving the FCC reportable incidents criteria. A public relations program
will be jointly developed and executed in support of this award program.
5.3 INSURANCE. Supplier shall maintain and cause Supplier's
subcontractors to maintain during the term of this Agreement: (a) Workers'
Compensation insurance as prescribed by the law of the state or nation in which
the work is performed, (b) employer's liability insurance with limits of at
least three hundred thousand dollars ($300,000) for each occurrence; (c)
comprehensive automobile liability insurance if the use of motor vehicles is
required, with limits of at least one million dollars ($1,000,000) combined
single limit for bodily injury and property damage for each occurrence, (d)
Comprehensive General Liability ("CGL") insurance, including Blanket Contractual
Liability and Broad Form Property damage, with limits of at least
one million dollars ($1,000,000) combined single limit for personal injury and
property damage for each occurrence; and (e) if the furnishing to Ordering
Company (by sale or otherwise) of Products or material is involved, CGL
insurance endorsed to include products liability and completed operations
coverage in the amount of five million dollars ($5,000,000) for each occurrence.
If specifically requested by Ordering Company, Supplier's subcontractors shall
furnish, prior to the start of work, certificates or adequate proof of the
foregoing insurance, including copies of the endorsements and insurance
policies. Supplier's obligations to maintain insurance may be satisfied by
providing proof of self-insurance in a form satisfactory to Company.
ARTICLE VA
ARBITRATION; DISPUTE RESOLUTION
5A.1 AGREEMENT TO ARBITRATE. The procedures for discussion,
negotiation and arbitration set forth in this Article 5A shall apply to all
disputes, controversies or claims (whether sounding in contract, tort or
otherwise) that may arise out of or related to, or arise under or in connection
with this Agreement or any Supplemental Agreement, or the transactions
contemplated hereby or thereby (including all actions taken in furtherance of
the transactions contemplated hereby or thereby on or prior to the date hereof),
or the commercial or economic relationship of the parties relating hereto,
between the parties. Each party agrees that the procedures set forth in this
Article 5A shall be the sole and exclusive remedy in connection with any
dispute, controversy or claim relating to any of the foregoing matters and
irrevocably waives any right to commence any Action in or before any
Governmental Authority except as expressly provided in Section 5A.7(b), CERTAIN
ADDITIONAL MATTERS, and 5A.8, LIMITED COURT ACTIONS, below and except to the
extent provided under the Arbitration Act in the case of judicial review of
arbitration results or awards. Each party on behalf of itself irrevocably waives
any right to any trial by jury with respect to any such claim, controversy, or
dispute.
5A.2 ESCALATION. (a) It is the intent of the parties to use
their respective reasonable best efforts to resolve expeditiously any dispute,
controversy or claim between or among them with respect to the matters covered
hereby that may arise from time to time on a mutually acceptable negotiated
basis. In furtherance of the foregoing, any party involved in a dispute,
controversy or claim may deliver a notice (an "Escalation Notice") demanding an
in person meeting involving representatives of the parties at a senior level of
management of the parties (or if the parties agree, of the appropriate strategic
business unit or division within such entity). A copy of any such Escalation
Notice shall be given to the General Counsel, or like officer or official, of
each party involved in the dispute, controversy or claim (which copy shall state
that it is an Escalation Notice pursuant to this Agreement). Any agenda,
location or procedures for such discussions or negotiations between the parties
may be established by the parties from time to time; provided, however, that the
parties shall use their reasonable best efforts to meet within thirty (30) days
of the Escalation Notice.
(b) The parties may, by mutual consent, retain a mediator to
aid the parties in their discussions and negotiations by informally providing
advice to the parties. Any opinion expressed by the mediator shall be strictly
advisory and shall not be binding on the parties, nor shall any opinion
expressed by the mediator be admissible in any arbitration proceedings. The
mediator may be chosen from a list of mediators previously selected by the
parties or by other agreement of the parties. Costs of the mediation shall be
borne equally by the parties involved in the matter, except that each party
shall be responsible for its own expenses. Mediation is not a prerequisite to a
demand for arbitration under Section 5A.3, DEMAND FOR ARBITRATION.
5A.3. DEMAND FOR ARBITRATION. (a) At any time after the first
to occur of (i) the date of the meeting actually held pursuant to the applicable
Escalation Notice or (ii) forty five (45) days after the delivery of an
Escalation Notice (as applicable, the "Arbitration Demand Date"), any party
involved in the dispute, controversy or claim (regardless of whether such party
delivered the Escalation Notice) may, unless the applicable deadline has
occurred, make a written demand (the "Arbitration Demand Notice") that the
dispute be resolved by binding arbitration, which Arbitration Demand Notice
shall be given in the manner set forth in Section 6.3, NOTICES. In the event
that any party shall deliver an Arbitration Demand Notice to another party, such
other party may itself deliver an Arbitration Demand Notice to such first party
with respect to any related dispute, controversy or claim with respect to which
the applicable deadline has not passed without the requirement of delivering an
Escalation Notice. No party may assert that the failure to resolve any matter
during any discussions or negotiation, the course of conduct during the
discussions or negotiations or the failure to agree on a mutually acceptable
time, agenda, location or procedures for the meeting, in each case, as
contemplated by Section 5A.2, ESCALATION, is prerequisite to a demand for
arbitration under this Section 5A.3. In the event that any party delivers an
Arbitration Demand Notice with respect to any dispute, controversy or claim that
is the subject of any then pending arbitration proceeding or of a previously
delivered Arbitration Demand Notice, all such disputes, controversies and claims
shall be resolved in the arbitration proceeding for which an Arbitration Demand
Notice was first delivered unless the
arbitrator in his or her sole discretion determines that it is
impracticable or
otherwise inadvisable to do so.
(b) Any Arbitration Demand Notice may be given until one year
and forty five (45) days after the later of the occurrence of the act or event
in the exercise of reasonable due diligence giving rise to the underlying claim
or the date on which such act or event was, or should have been, discovered by
the party asserting the claim (as applicable, and as it may in a particular case
be specifically extended by the parties in writing, the "Applicable Deadline").
Any discussions, negotiations or mediations between the parties pursuant to this
Agreement or otherwise will not toll the Applicable Deadline unless expressly
agreed in writing by the parties. Each of the parties agrees that if an
Arbitration Demand Notice with respect to a dispute, controversy or claim is not
given prior to the expiration of the Applicable Deadline, as between or among
the parties, such dispute, controversy or claim will be barred. Subject to
Section 5A.7 (d), CERTAIN ADDITIONAL MATTERS, and 5A.8, LIMITED COURT ACTIONS,
upon delivery of an Arbitration Demand Notice pursuant to Section 5A.3 (b) ,
DEMAND FOR ARBITRATION, prior to the Applicable Deadline, the dispute,
controversy or claim shall be decided by a sole arbitrator in accordance with
the rules set forth in this Article 5A.
5A.4. ARBITRATORS. (a) Within fifteen (15) days
after a valid
Arbitration Demand Notice is given, the parties involved in the
dispute,
controversy or claim referenced therein shall attempt to select a
sole
arbitrator satisfactory to all such parties.
(b) In the event that such parties are not able to jointly
select a sole arbitrator within such fifteen (15) day period, such parties shall
each appoint an arbitrator (who need not be disinterested as to the parties or
the matter) within thirty (30) days after delivery of the Arbitration Demand
Notice. If one party appoints an arbitrator within such time period and the
other party or parties fail to appoint an arbitrator within such time period,
the arbitrator appointed by the one party shall be the sole arbitrator of the
matter.
(c) In the event that a sole arbitrator is not selected
pursuant to paragraph (a) or (b) above and, instead, two (2) or three (3)
arbitrators are selected pursuant to paragraph (b) above, the two or three
arbitrators will, within thirty (30) days after the appointment of the later of
them to be appointed, select an additional arbitrator who shall act as the sole
arbitrator of the dispute. After selection of such sole arbitrator, the initial
arbitrators shall have no further role with respect to the dispute. In the event
that the arbitrators so appointed do not, within thirty (30) days after the
appointment of the later of them to be appointed, agree on the selection of the
sole arbitrator, any party involved in such dispute may apply to CPR, New York,
New York, to select the sole arbitrator, which selection shall be made by such
organization within thirty (30) days after such application. Any arbitrator
selected pursuant to this paragraph (c) shall be disinterested with respect to
any of the parties and the matter and shall be reasonably competent in the
applicable subject matter.
(d) The sole arbitrator selected pursuant to paragraph (a),
(b) or (c) above will set a time for the hearing of the matter which will
commence no later than ninety (90) days after the
date of appointment of the sole arbitrator pursuant to paragraph (a), (b) or (c)
above, and which hearing will be no longer than thirty (30) days (unless in the
judgment of the arbitrator the matter is unusually complex and sophisticated and
thereby requires a longer time, in which event such hearing shall be no longer
than ninety (90) days). The final decision of such arbitrator will be rendered
in writing to the parties not later than sixty (60) days after the last hearing
date, unless otherwise agreed by the parties in writing.
(e) The place of any arbitration hereunder will
be New Jersey,
unless otherwise agreed by the parties.
5A.5 HEARINGS. Within the time period specified in Section
5A.4 (d), ARBITRATORS, the matter shall be presented to the arbitrator at a
hearing by means of written submissions of memoranda and verified witness
statements, filed simultaneously, and responses, if necessary in the judgment of
the arbitrator or both parties. If the arbitrator deems it to be essential to a
fair resolution of the dispute, live cross-examination or direct examination may
be permitted, but is not generally contemplated to be necessary. The arbitrator
shall actively manage the arbitration with a view to achieving a just, speedy
and cost-effective resolution of the dispute, claim or controversy. The
arbitrator may, in his discretion, set time and other limits on the presentation
of each party's case, its memoranda or other submissions, and refuse to receive
any proffered evidence, which the arbitrator, in his discretion, finds to be
cumulative, unnecessary, irrelevant or of low probative nature. Except as
otherwise set forth herein, any arbitration hereunder will be conducted in
accordance with the CPR Rules for Non-Administered Arbitration of Business
Disputes (except that the fee schedule of the CPR will not apply). Except as
expressly set forth in Section 5A.8(b), LIMITED COURT ACTIONS, the decision of
the arbitrator will be final and binding on the parties, and judgment therein
may be had and will be enforceable in any court having jurisdiction over the
parties. Arbitration awards will bear interest at an annual rate of the Prime
Rate Plus two percent (2%) per annum. To the extent that the provisions of this
Agreement and the prevailing rules of the CPR conflict, the provisions of this
Agreement shall govern.
5A.6 DISCOVERY AND CERTAIN OTHER MATTERS. (a) Any party
involved in the applicable dispute may request limited document production from
the other party or parties of specific and expressly relevant documents, with
the reasonable expenses of the producing party incurred in such production paid
by the requesting party. Any such discovery (which rights to documents shall be
substantially less than document discovery rights prevailing under the Federal
Rules of Civil Procedure) shall be conducted expeditiously and shall not cause
the hearing provided for in Section 5A.5, HEARINGS, to be adjourned except upon
consent of all parties involved in the applicable dispute or upon an
extraordinary showing of cause demonstrating that such adjournment is necessary
to permit discovery essential to a party to the proceeding. Depositions,
interrogatories or other forms of discovery (other than the document production
set forth above) shall not occur except with the consent of the parties involved
in the applicable dispute. Disputes concerning the scope of document production
and enforcement of the document production requests will be determined by
written agreement of the parties
involved in the applicable dispute or, failing such agreement, will be referred
to the arbitrator for resolution. All discovery requests will be subject to the
parties' rights to claim any applicable privilege. The arbitrator will adopt
procedures to protect such rights and to maintain the confidential treatment of
the arbitration proceedings (except as may be required by law). Subject to the
foregoing, the arbitrator shall have the power to issue subpoenas to compel the
production of documents relevant to the dispute, controversy or claim.
(b) Except where contrary to the provisions set forth in this
Agreement or any Supplemental Agreement, the rules of the CPR for commercial
arbitration will be applied to all matters of procedure, including discovery.
The arbitrator shall have full power and authority to determine issues of
arbitrability but shall otherwise be limited to interpreting or continuing the
applicable provisions of this Agreement and will have no authority or power to
limit, expand, alter, amend, modify, revoke or suspend any condition or
provision of the Agreement; it being understood, however, the arbitrator will
have full authority to implement the provisions of this Agreement, and to
fashion appropriate remedies for breaches of this Agreement (including, other
than in the case of disputes, controversies or claims relating to, arising out
of or resulting from Patents (as such term is defined in the Patent License
Agreement), interim or permanent injunctive relief); provided that the
arbitrator shall not have (i) any authority in excess of the authority a court
having jurisdiction over the parties and the controversy or dispute would have
absent these arbitration provisions or (ii) any right or power to award punitive
damages. It is the intention of the parties that in rendering a decision, the
arbitrator give effect to the applicable provisions of this agreement and follow
applicable law (it being understood and agreed that this sentence shall not give
rise to a right of judicial review of the arbitrator's award).
(c) If a party fails or refuses to appear at and participate
in an arbitration hearing after due notice, the arbitrator may hear and
determine the controversy upon evidence produced by the appearing party.
(d) Arbitration costs will be borne equally by each party
involved in the matter, except that each party will be responsible for its own
attorneys fees and other costs, expenses, including the costs of witnesses
selected by such party.
5A.7. CERTAIN ADDITIONAL MATTERS. (a) Any arbitration award
shall be a bare award limited to a holding for or against a party and shall be
without findings as to facts, issues or conclusions of law (including with
respect to any matters relating to the validity or infringement of Patents) and
shall be without a statement of the reasoning on which the award rests, but must
be in adequate form so that a judgment of a court may be entered thereupon.
Judgment upon any arbitration award hereunder may be entered in any court having
jurisdiction thereof.
(b) Prior to the time at which an arbitrator is appointed
pursuant to Section 5A.4(c), ARBITRATORS, any party may seek one or more
temporary restraining orders in a
court of competent jurisdiction if necessary in order to preserve and protect
the status quo. Neither the request for, nor grant or denial of, any such
temporary restraining order shall be deemed a waiver of the obligation to
arbitrate as set forth herein and the arbitrator may dissolve, continue or
modify any such order. Any such temporary restraining order shall remain in
effect until the first to occur of the expiration of the order in accordance
with its terms or the dissolution thereof by the arbitrator.
(c) Except as required by law, the parties shall hold, and
shall cause their respective officers, directors, employees, agents and other
representatives to hold, the existence, content and result of mediation or
arbitration in confidence in accordance with the provisions of Section 6.2 and
except as may be required in order to enforce any award. Each of the parties
shall request that any mediator or arbitrator comply with such confidentiality
requirement.
(d) In the event that at any time the sole arbitrator shall
fail to serve as an arbitrator for any reason, the parties shall select a new
arbitrator who shall be disinterested as to the parties and the matter in
accordance with the procedures set forth herein for the selection of the initial
arbitrator. The extent, if any, to which testimony previously given shall be
repeated or as to which the replacement arbitrator elects to rely on the
stenographic record (if there is one) of such testimony shall be determined by
the replacement arbitrator.
5A.8 LIMITED COURT ACTIONS. (a) Notwithstanding anything
herein to the contrary, in the event that any party reasonably determines the
amount of controversy in any dispute, controversy or claim (or any series of
related disputes, controversies or claims) under this Agreement is, or is
reasonably likely to be, in excess of one hundred million dollars ($100,000,000)
and if such party desires to commence an Action in lieu of complying with the
arbitration provisions of this Article, such party shall so state in its
Arbitration Demand Notice or by notice given to the other parties within twenty
(20) days after receipt of an Arbitration Demand Notice with respect thereto. If
the other parties to the arbitration do not agree that the amount in controversy
in such dispute, controversy or claim (or such series of related disputes,
controversies or claims) is, or is reasonably likely to be, in excess of one
hundred million dollars ($100,000,000), the arbitrator selected pursuant to
Section 5A.4, ARBITRATORS, hereof shall decide whether the amount in
controversies or claims) is, or is reasonably likely to be, in excess of one
hundred million dollars ($100,000,000). The arbitrator shall set a date that is
no later than ten (10) days after the date of his appointment for submissions by
the parties with respect to such issue. There shall not be any discovery in
connection with such issue. The arbitrator shall render his decision on such
issue within five (5) days of such date so set by the arbitrator. In the event
that the arbitrator determines that the amount in controversy in such dispute,
controversy or claim (or such series of related disputes, controversies or
claims) is, or is reasonably likely to be, in excess of one hundred million
dollars ($100,000,000), the provisions of Sections 5A.4(d), and (e),
ARBITRATORS, 5A.5, HEARINGS, 5A.6, DISCOVERY AND CERTAIN OTHER MATTERS, 5A.7,
CERTAIN ADDITIONAL MATTERS, and 5A.10, LAW GOVERNING ARBITRATION PROCEDURES,
hereof shall not apply and on or before (but, except as expressly set forth in
Section 5A.8(b), not after) the tenth (10th) business day after the date of
such decision, any party to the arbitration may commence an Action with respect
to such dispute, controversy or claim (or such series of related disputes,
controversies or claims) in any court of competent jurisdiction. If the
arbitrator does not so determine, the provisions of this Article (including with
respect to time periods) shall apply as if no determinations were sought or made
pursuant to this Section 5A.8.
(b) In the event that an arbitration award in excess of one
hundred million dollars ($100,000,000.) is issued in any arbitration proceeding
commenced hereunder, any party may, within sixty (60) days after the date of
such award, submit the dispute, controversy or claim (or series of related
disputes, controversies or claims) giving rise thereto a court of competent
jurisdiction, regardless of whether such party or any other party sought to
commence an action in lieu of proceeding with arbitration in accordance with
Section 5A.8(a). In such event, the applicable court may, if it determines that
it would be advisable in connection with the matter, allow the parties to seek
additional discovery or to present additional evidence. Each party shall be
entitled to present arguments to the court with respect to whether any such
additional discovery or evidence shall be permitted and with respect to all
other matters relating to the applicable dispute, controversy or claim (or
series of related disputes, controversies or claims).
(c) No party shall raise as a defense the statute of
limitations if the applicable Arbitration Demand Notice was delivered on or
prior to the Applicable Deadline and, if applicable, the matter is submitted to
a court of competent jurisdiction within the sixty (60) day period specified in
Section 5A.8(b).
5A.9. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement during the course of dispute resolution
pursuant to the provisions of this Article 5A with respect to all matters not
subject to such dispute, controversy or claim.
5A.10. LAW GOVERNING ARBITRATION PROCEDURES. The
interpretation of the provisions of this Article 5A, only insofar as they relate
to the agreement to arbitrate and any procedures pursuant thereto shall be
governed by the Arbitration Act and other applicable federal law. In all other
respects, the interpretation of this Agreement shall be governed as set forth in
Section 6.19, GOVERNING LAW.
ARTICLE VI
MISCELLANEOUS
6.1 EXPORT CONTROL. The parties acknowledge that Products,
Licensed Materials and Information (including, but not limited to, Services and
training) provided under this Agreement are subject to U.S. export laws and
regulations, and any use or transfer of such Products and Information must be
authorized under those regulations. AT&T agrees that it will not use,
distribute, transfer, or transmit the Products, Licensed Materials or
Information (even if incorporated into other products) in violation of U.S.
export regulations. If requested by Supplier, AT&T shall sign written assurances
and other export-related documents as may be
required for Supplier to comply with U.S. export regulations. This Section does
not grant AT&T any contractual right to Export Supplier's Products and Licensed
Materials. Such right shall only be granted expressly in an applicable
Supplemental Agreement.
6.2 PUBLICATION OF AGREEMENT. The parties shall treat the
provisions of this Agreement and any Supplemental Agreement or any Order
submitted hereunder as Information subject to the restrictions on use and
disclosure set forth in Section 4.1, USE OF INFORMATION, except as reasonably
necessary for performance hereunder (including enforcement of Supplier's
obligations under the Pricing Agreement and AT&T's obligations under Exhibit 1
thereto) and except to the extent disclosure may be required by applicable laws
or regulations, in which latter case, the party required to make such disclosure
shall promptly inform the other prior to such disclosure in sufficient time to
enable such other party to make known any objections it may have to such
disclosure. The party required to disclose information concerning this
Agreement, a Supplemental Agreement or Order to a third party in accordance with
the previous sentence shall take all reasonable steps to secure a protective
order or otherwise assure that the Agreement, Supplemental Agreement or Order
will be withheld from the public record.
6.3 NOTICES. All notices under this Agreement shall be in
writing (except where otherwise stated) by confirmed, facsimile, electronic mail
or similar communication, or by certified or registered mail.
Within ten (10)
days following the Effective Date, the parties will exchange the names and
addresses to whom the notices should be sent. A notice shall be deemed to have
been given, if by electronic mail, facsimile or similar communication, on the
date it is sent, and, if by certified or registered mail, on the date it is
deposited postage prepaid. Communications may be made orally between the parties
when the nature of the communication does not require written notice. In the
event of a change of address, written notice of such change shall be given
promptly to the other party.
6.4 ORDERING COMPANY'S RESPONSIBILITY. (a) Ordering Company
shall, at no charge to Supplier, provide Supplier with notice of site conditions
known to Ordering Company and such electrical and environmental conditions,
technical information, data, technical support or assistance as may reasonably
be required by Supplier to fulfill its obligations under this Agreement, any
Supplemental Agreement or Order. If Ordering Company fails to provide the
required conditions, technical information, data, support or assistance,
Supplier shall be discharged from its obligations to perform hereunder for that
Order. Where Services are to be performed by Supplier in buildings owned or
controlled by Ordering Company, Ordering Company shall be responsible for
ensuring that the premises where the work is to be performed by Supplier are
accessible to Supplier and ready and suitable for the Services to be performed
in accordance with Supplier's reasonable site-preparation conditions
communicated in advance to Ordering Company. Such conditions include, but are
not limited to, (a) site readiness and (b) access to adequate storage space for
tools and other small items necessary for the work, working space, personal
facilities, heat, light, ventilation, telephone, electrical current, and
outlets, all provided within a reasonable distance of the area where the work is
to be performed, if available.
(b) Supplier's representative shall have the right to inspect
the site prior to Service Start Date. If Ordering Company or its other vendors
or contractors fail to timely complete site readiness or if the work of Ordering
Company or its other vendors or contractors interferes with Supplier's
performance, the applicable Completion Date shall be extended as necessary to
compensate for such delay or interference and additional charges shall be
invoiced to recover the additional expenses incurred by Supplier as a result of
such failure or interference. Moreover, should Ordering Company fail to comply
with the reasonable site-preparation conditions after Supplier provides Ordering
Company notice, Supplier may perform such work or furnish such items and charge
Ordering Company for them in addition to the prices otherwise charged by
Supplier for such Services.
6.5 SUPPLIER'S RESPONSIBILITY. (a) Supplier shall become
acquainted with conditions governing the delivery, receipt and storage of
materials at the site of the work so that Supplier will not interfere with
Ordering Company's operations. For items other than those identified in Section
6.4, ORDERING COMPANY'S RESPONSIBILITY, above, storage space will not
necessarily be provided adjacent to the site of the work. Therefore, Supplier
shall be expected to select, uncrate, remove and transport materials from the
storage areas provided. Except to the extent that Supplier's property located on
Ordering Company's property is damaged or misappropriated by employees,
contractors or representatives of Ordering Company, Ordering Company is not
responsible for the safekeeping of such property. When Supplier's property
located on Ordering Company's property is damaged or misappropriated by
employees, contractors, or representatives of Ordering Company, Ordering Company
shall be liable to Supplier for such damage or misappropriation. Supplier shall
not stop, delay or interfere with Ordering Company's work schedule without the
prior approval of Ordering Company. Supplier shall provide and maintain
sufficient covering and take any other precautions necessary to protect Ordering
Company's stock, equipment and other property from damage due to Supplier's
performance of the work.
(b) Supplier recognizes that the continuity of Ordering
Company's telecommunications services is of paramount importance to Ordering
Company, and Supplier shall at all times exercise reasonable care to prevent
damage to Company's plant and shall not use any equipment or methods which
Ordering Company has informed Supplier, either in writing or through oral
directives at the work site, might endanger or interfere with its service.
6.6 EACH PARTY'S RESPONSIBILITY. Each party shall be entirely
responsible for all persons that it furnishes working in harmony with all others
when working on the other party's premises or those of Ordering Company's
customers. Services performed by either party or its other vendors or
contractors shall not interfere with the other party's performance of services.
6.7 ASSURANCE OF SUPPLY. (a) AT&T and Supplier
will jointly
conduct regularly scheduled Life Cycle Management reviews for the
purpose of
sharing information concerning current and future Product and
support
requirements in order to permit both parties to make informed
decisions
concerning such matters. AT&T's priority is to assure the ongoing
growth and service capabilities of the network are satisfied. In order to ensure
the long term viability of the network, AT&T will have the option to request
sustained manufacturing service for all Products and components that are used in
the network.
(b) Supplier must provide written notification to AT&T
eighteen (18) months in advance of Supplier's intended date of DA of any Product
used in Ordering Company's network, or to substitute or replace such Product if
Form, Fit or Function is affected. Supplier will provide nine (9) months written
notice with regard to BCS Products not used in Order Company's network. If
Supplier's vendor terminates production of a Product and/or component of a
Product, Supplier will use reasonable efforts to provide the Products or
components or secure sources for such Products or components; provided however,
that Supplier reserves the right to provide a shorter notice in the event
suppliers of a Product or critical component terminates production or
maintenance of such items and no other sources for such items can be secured.
Within six (6) months of notification of DA, AT&T will provide written
notification to Supplier that it concurs with Supplier's decision or that it
intends to negotiate the terms, conditions and prices under which availability
shall be extended, provided that such Product and/or its components are
available to Supplier. Unless otherwise agreed to, the framework for that
agreement is that Supplier will be entitled to recover its costs of providing
continued availability, plus a reasonable profit. Software DA is governed by
Section 9.20, NOTIFICATION OF DISCONTINUED AVAILABILITY OF SOFTWARE.
6.8 PUBLICITY. Each party shall submit to the other a proposed
copy of all advertising wherein the name, trademark, code, Specification or
service mark of the other party or its Affiliates is mentioned. Neither party
shall publish or use such advertising without the other's prior written
approval, which consent shall not be unreasonably withheld or delayed.
6.9 RIGHT OF ACCESS/PERMITS AND APPROVALS. Each party shall
have the right to enter the premises of the other party during normal business
hours with respect to the performance of this Agreement, subject to all plant
rules and regulations, security regulations and procedures and U.S. Government
clearance requirements if applicable. No charge shall be made for such access.
Reasonable prior notification shall be given when access is required. Ordering
Company shall have the responsibility for obtaining all state, local and federal
approvals and permits prior to the commencement of the work. Any limitation of
or delay in providing timely access may result in a change of Supplier's
schedule for performing its obligations hereunder and additional charges to
recover additional expenses incurred by Supplier as a result of such limitations
or delays.
6.10 FORCE MAJEURE. Neither party shall be held responsible
for any delay or failure in performance to the extent that such delay or failure
is caused by a Force Majeure; provided, however, that Ordering Company shall not
be relieved by reason of such cause of its obligation to make payments to
Supplier. If any Force Majeure condition occurs, the party delayed or unable to
perform shall give prompt notice to the other party, stating the nature of the
Force Majeure condition and any action being taken to avoid or minimize its
effect. The party affected by the other's delay or inability to perform
(hereinafter the "Affected Party") may elect
to: (a) suspend the applicable Supplemental Agreement or Order for the duration
of the Force Majeure condition and (i) only to the extent reasonably necessary
to maintain the normal operation of the Affected Party's business, buy, sell,
obtain or furnish elsewhere the Product, Licensed Material or Services to be
bought, sold, obtained or furnished thereunder (unless such sale or furnishing
is prohibited under this Agreement, a Supplemental Agreement or an Order, in
which event an Ordering Company experiencing a Force Majeure condition shall
bear Supplier's reasonable costs (including inventory costs) incurred awaiting
cessation of the Force Majeure condition) and, at the option of the Affected
Party, deduct from any commitment the quantity bought, sold, obtained or
furnished or for which commitments have been made elsewhere and (ii) once the
Force Majeure condition ceases, resume performance under the applicable
Supplemental Agreement or Order with an option in the Affected Party to extend
the period of such Supplemental Agreement or Order up to the length of time the
Force Majeure condition endured and/or (b) when the delay or nonperformance
continues for a period of at least thirty (30) days, terminate, at no charge and
without any liability, the applicable Supplemental Agreement or Order or the
part of it relating to Products or Licensed Material not already shipped, or
Services not already performed. Unless written notice is given within forty-five
(45) days after the Affected Party is notified of the Force Majeure condition,
option (a) shall be deemed selected. Nothing contained herein or elsewhere shall
impose any obligation on either party to settle any labor difficulty.
6.11 INDEPENDENT CONTRACTOR. All work performed by Supplier,
AT&T or an Ordering Company under this Agreement shall be performed as an
independent contractor and not as an agent of the other, and no persons
furnished by the performing party shall be considered the employees or agents of
the other. Each party is wholly responsible for withholding and payment of all
federal, state, and local income and other payroll taxes with respect to its
employees, including contributions from them as required by law.
6.12 RELEASES VOID. Neither party shall require releases or
waivers of any personal rights from representatives or employees of the other in
connection with visits to its premises, nor shall such parties plead such
releases or waivers in any action or proceeding.
6.13 SURVIVAL OF OBLIGATIONS. The rights and
obligations of
the parties which by their nature would continue beyond the
termination,
cancellation, or expiration of this Agreement, including, but not
limited to
COMPLIANCE WITH LAW, TRADEMARKS, INFRINGEMENT AND
MISAPPROPRIATION, INSURANCE,
RELEASES VOID, USE OF INFORMATION, CONTINUING PRODUCT SUPPORT -
PARTS AND
SERVICE, PRODUCT WARRANTY, SOFTWARE WARRANTY, WARRANTY FOR
SERVICES OTHER THAN
MAINTENANCE, MAINTENANCE SERVICE WARRANTY and WARRANTY, shall
survive such
termination, cancellation or expiration.
6.14 GOVERNMENT CONTRACT PROVISIONS. Ordering Company shall
identify in a request for proposed Supplemental Agreement if a Product, Licensed
Material or Service to be provided by Supplier is intended for use under a
government contract and if government contract flowdown provisions shall apply
to such procurement, with identification of such flowdown
provisions. In such a case, Supplier will advise AT&T if it will submit a
proposal, bid or accept an Order on such basis and, if so, it will address its
acceptance or compliance with the flowdown terms and conditions in its proposal,
bid or Supplemental Agreement. Orders placed in accordance with such proposal,
bid or Supplemental Agreement will be subject to the identified government
contract provisions as negotiated. If an Order or Supplemental Agreement fails
to specify the inclusion of government flowdown clauses or is issued by AT&T
without the prior identification of government contract use or flowdown clauses
as provided above, Supplier shall have the right to terminate such Order or
Supplemental Agreement and collect from Ordering Company charges for expenses
incurred until the effective date of such termination.
6.15 QUALITY SYSTEM AUDIT. (a) Supplier shall
maintain a
compliant quality system that is subject to third party quality
system audit
that shall include the following elements:
(i) Management Responsibility
(ii) Quality System Principles
(iii) Quality in Marketing
(iv) Quality in Specification/Design
(v) Quality in Procurement
(vi) Quality in Production
(vii) Control of Production
(viii) Product Verification
(ix) Control of Measuring and Test Equipment
(x) Non-conformity
(xi) Corrective Action
(xii) Handling and Post-production
(xiii) Quality Documentation and Records
(xiv) Use of Statistical Methods
(b) Such an audit shall assess the effectiveness and
documentation of the various elements that comprise a functioning quality
system. Supplier agrees that any deficiencies discovered in Supplier's quality
system as a result of the audit(s) shall be remedied by Supplier at Supplier's
expense.
6.16 ISO 9000. Supplier will undertake all reasonable actions
to become ISO 9000 registered. Certain vintage Products are exempt from this
Section. Such registration must be made by a third party registrar(s) accredited
in the following countries: United States or such other country as may be
designated in writing by AT&T or an Ordering Company.
6.17 UTILIZATION OF MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES. It is AT&T's policy that minority and women-owned business
enterprises ("MWBE's) as defined in Exhibit 6-1 shall have the maximum
practicable opportunity to participate in the performance of contracts. Supplier
agrees to use its good faith efforts to utilize MWBE's to carry out this policy
to the fullest extent consistent with the efficient performance of its business
and this
Agreement. In addition to these general conditions for MWBE support, provided
that Ordering Company will work with Supplier to seek out MWBE's and works with
Supplier in the development of opportunities for the use of MWBE's, Supplier
agrees to (a) work with Ordering Company to develop opportunities for the
utilization of MWBE's for first tier procurement of Supplier's Products,
Licensed Materials and Services by Ordering Company, (b) use its good faith
efforts to utilize MWBE's in support of this Agreement and strive to achieve the
portion of total expenditures for all Products, Licensed Materials and Services
purchased from Supplier equal to 5% of the value of Ordering Companies'
purchases of Products, Licensed Materials and Services from Supplier in 1996,
and strive to increase such percentage by 10% each of the following years of
this Agreement and (c) support Ordering Companies' state and regional goals for
MWBE and service-disabled veterans spending in California and other
states/regions as may be defined in the future. Supplier agrees to conduct a
program which will enable MWBE's to be considered fairly as subcontractors and
suppliers under this Agreement. Supplier shall submit to AT&T periodic reports
of work with known MWBE's in the form of Exhibit 6-1 in such manner and at such
time (not more than quarterly) as AT&T's representative may prescribe. Such
periodic reports shall state separately for MBE's and WBE's the subcontracted
work which is attributable to Ordering Companies. In instances where direct
correlation cannot be determined, such MWBE payments may be established by
Supplier comparing Ordering Company's payments to Supplier, in that period, to
total payments to Supplier from all of its customers, in that period, and then
arriving at Ordering Company's apportionment of such MWBE payments. Nothing in
this clause shall affect or diminish Supplier's obligations as set forth in the
assignment and subcontracting provisions.
6.18 ASSIGNABILITY. Except as provided in this clause, neither
party shall assign this Agreement or any right or interest under this Agreement,
nor delegate any work or obligation to be performed under this Agreement (an
"assignment") without the other party's prior written consent. Any attempted
assignment in contravention of this clause shall be void and ineffective.
Nothing shall preclude a party from employing a subcontractor in carrying out
its obligations under this Agreement; provided, however, that if Supplier uses a
subcontractor to perform a material service or obligation under this Agreement,
such use will be subject to AT&T's written consent. Supplier's use of such
subcontractor shall not release Supplier from its obligations under this
Agreement. Notwithstanding the foregoing, Supplier shall have the right to
assign this Agreement and to assign its rights under this Agreement, in whole or
in part, to any present or future Affiliate or to any entity which purchases
from Supplier the operating asset(s) utilized by Supplier to fulfill its
obligations hereunder, subject to AT&T's written consent, which consent shall
not be unreasonably withheld; provided, however, that in any such event Supplier
shall not be released from its obligations hereunder and shall indemnify, defend
and hold harmless each Ordering Company for all losses or damages arising in
connection therewith, including from any breach of this Agreement by such
assignee. The notice of assignment shall state the effective date thereof.
Following the effective date and to the extent of the assignment, Supplier shall
not be released from obligations. For purposes of this clause, the "Agreement"
includes this Agreement, each Supplemental Agreement, each Order and any other
subordinate agreement placed under this Agreement.
6.19 GOVERNING LAW. Except as set forth in Section 5A.10, LAW
GOVERNING ARBITRATION PROCEDURES, this Agreement and, unless expressly provided
therein, each Supplemental Agreement, shall be governed by and construed and
interpreted in accordance with the laws of the State of New Jersey, irrespective
of the choice of laws principles of the State of New Jersey, as to all matter,
including matters of validity, construction, effect, performance and remedies.
6.20 COMPLIANCE WITH LAW. Each party shall comply at its own
expense with applicable laws, ordinances, regulations, codes, rules, guidelines,
orders, permits and approvals of any governmental body, including, but not
limited to, those relating to the environment, health, and safety. Each Party
agrees to indemnify, defend (at the other party's request) and save harmless the
other party, its Affiliates, its and their customers and each of their officers,
directors and employees from and against any losses, damages, claims, demands,
suits, liabilities, fines, penalties and expenses (including reasonable
attorney's fees) that arise out of or result from (i) failure to do so or (ii)
activity, duty or status of such party that triggers any obligation to
investigate or remediate environmental contamination.
6.21 RECORD RETENTION. Ordering Company
agrees to keep true
and accurate records with regard to its use of Supplier's
Licensed Material.
Supplier shall have the right to inspect such records at any reasonable time,
not more often than once each calendar year, upon reasonable notice in writing
to Ordering Company. Supplier shall bear the cost of such auditing.
6.22 NON-WAIVERS. The failure of either party at any time to
enforce any right or remedy available to it under this Agreement or otherwise
with respect to any breach or failure by the other party shall not be construed
to be a waiver of such right or remedy with respect to any other breach or
failure by the other party.
6.23 THIRD PARTY BENEFICIARIES. Except as otherwise provided
in Section 1A.7, PURCHASES BY AT&T'S AFFILIATES, of this Agreement or as
expressly provided in any Supplemental Agreement, the provisions of this
Agreement and each Supplemental Agreement are solely for the benefit of the
parties and are not intended to confer upon any person except the parties any
rights or remedies hereunder. There are no third party beneficiaries of this
Agreement or any Supplemental Agreement and neither this Agreement nor any
Supplemental Agreement shall provide any third person with any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement or any Supplemental Agreement.
6.24 SEVERABILITY. If any provision of this Agreement or any
Supplemental Agreement or the application thereof to any person or circumstance
is determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof or thereof, or the application of
such provision to persons or circumstances or in jurisdiction other than those
as to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic
or legal substance of the transactions contemplated hereby or thereby, as the
case may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
6.25 HEADINGS. The article, section and paragraph headings
contained in this Agreement and in the Supplemental Agreements are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement or any Supplemental Agreement.
6.26 COUNTERPARTS. This Agreement and each Supplemental
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party.
6.27 AMENDMENTS. No provisions of this Agreement or any
Supplemental Agreement shall be deemed waived, amended, supplemented or modified
by any party, unless such waiver, amendment, supplement or modification is in
writing and signed by the authorized representative of the party against whom it
is sought to enforce such waiver, amendment, supplement or modification.
6.28 INTERPRETATION. Words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other genders as the context requires. The terms "hereof," "herein"
and "herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement (or the applicable Supplemental Agreement)
as a whole (including all of the Schedules, Exhibits and Appendices hereto and
thereto) and not to any particular provision of this Agreement (or such
Supplemental Agreement). Article, Section, Exhibit, Schedule and Appendix
references are to the Articles, Sections, Exhibits, Schedules and Appendices to
this Agreement (or the applicable Supplemental Agreement) unless otherwise
specified. The word "including" and words of similar import when used in this
Agreement (or the applicable Supplemental Agreement) shall mean "including,
without limitation," unless the context otherwise requires or unless otherwise
specified. The word "or" shall not be exclusive.
6.29 ENTIRE AGREEMENT. The terms and conditions contained in
this General Purchase Agreement supersede all contemporaneous oral and all prior
oral or written quotations, communications, agreements and understandings
between the parties with respect to the subject matter hereof and constitute the
entire agreement between the parties with respect to such subject matter. The
preprinted terms and conditions on Ordering Company's purchase Orders and
Supplier's sales forms are deleted. The statements of Supplier's employees and
descriptions of Supplier's Products, Licensed Materials and Services do not
constitute warranties or other contractual obligations and shall not be relied
upon by any Ordering Company as such. Terms shall not be modified or amended
except by a writing signed by authorized representative of both parties.
ARTICLE VII
PURPOSE AND ORGANIZATION OF PART II
7.1 PURPOSE AND SCOPE OF PART II. Part II
sets forth the
specific additional terms and conditions pursuant to which
Supplier shall
provide, and Ordering Company shall purchase or license,
Supplier's Products,
Licensed Materials and Services that relate to the operation of
telecommunications network infrastructure. The terms and conditions of Ordering
Company's purchase and licensing of Products, Licensed Materials and Services
provided by Supplier's Global Business Communications Systems business unit are
set forth in Part III. A non-exclusive list of the specific Products, Licensed
Materials and Services is set forth in the Product Information Catalog
Extraction System ("PRICES") database. Supplier may at any time, and without
consent of Ordering Company, revise or otherwise amend that database solely to
add to it additional items offered by Supplier under Part II. Supplier shall
remove items from that database only in accordance with Section 6.7, ASSURANCE
OF SUPPLY. Failure of Supplier to list a Product or Service in that database
shall not preclude Supplier from providing such item pursuant to Part II.
7.2 ORGANIZATION OF PART II. Part II is
organized as follows:
(a) Article 8 sets forth the additional terms
and conditions
governing Supplier's provision of Products;
(b) Article 9 sets forth the additional terms
and conditions
governing Supplier's licensing of Licensed Materials;
(c) Article 10 sets forth the additional terms and conditions
governing Supplier's provision of Engineering, Installation, Maintenance, and
other Miscellaneous Services;
(d) Article 11 sets forth the additional terms and conditions
governing Supplier's provision of Outside Plant Construction Services; and
(e) Article 12 sets forth the additional terms and conditions
governing Supplier's provision of Consulting Services.
ARTICLE VIII
PURCHASE OF PRODUCTS
8.1 GENERAL. The provisions of this Article 8 shall be
applicable to the purchase of Products from Supplier. If Software is also to be
licensed for use on a purchased Product, or if a Product is also to be
engineered or installed by Supplier, the provisions of Articles 9 and 10 shall
also be applicable.
8.2 PRODUCT WARRANTY. (a) Supplier warrants to
Ordering Company only, that:
(i) As of the date title passes,
Supplier will have
the right to sell, transfer, and assign such Products
and the title
conveyed by Supplier shall be good and Products shall be
delivered free
from any security interests or any other liens or
encumbrances ;
(ii) Upon shipment or, if installed by
Supplier upon
Acceptance, Supplier's Manufactured Products will be
new (except if
manufactured discontinued, or with Ordering Company's
approval), free
from defects in material, workmanship, and design (except
to the extent
(A) designed, in whole or in part, by Ordering
Company or persons
furnished by Ordering Company; or (B) such design defects
are caused by
the presence in Supplier's Manufactured Product
of substitute
components of Ordering Company's selection and not
recommended by
Supplier), and will conform to Supplier's
Specifications or any other
agreed-upon Specifications referenced in the Order for
such Products;
and
(iii) With respect to Vendor Items,
Supplier, to the
extent permitted, does hereby assign to Ordering Company
the warranties
given to Supplier by its vendor of such Vendor Items.
Such assignment
will be effective on the date of shipment of such
Vendor Items. With
respect to Vendor Items recommended by Supplier in its
Specifications
for which the Vendor's warranty cannot be assigned to
Ordering Company,
or if assigned, less than sixty (60) days remain of
the Vendor's
warranty at the time of assignment, Supplier warrants
for sixty (60)
days from date of shipment or if installed by Supplier
from Acceptance
that such Vendor's Items will be free from defects in
material and
workmanship and will conform to Supplier's
Specifications or any other
agreed-upon Specification referenced in the Order for
such Products.
(iv) Neither inspection,
Acceptance, nor payment
shall affect or reduce the term of any warranty.
(b) The Warranty Period for a Product is set forth in Exhibit
8-1. The Warranty Period for a Product or part thereof repaired under this
Warranty is the period indicated in Exhibit 8-1.
(c) If, under normal and proper use during the applicable
Warranty Period, a defect or nonconformity is identified in a Product furnished
by Supplier, Ordering Company shall notify Supplier in writing of such defect or
nonconformity promptly after Ordering Company discovers such defect or
nonconformity and follow Supplier's instructions regarding the return of
defective or nonconforming Product. With respect to a defect or nonconformity of
Products to Supplier's Specifications or any other agreed upon Specification
referenced in the Order for such Products, Supplier shall take the following
action promptly:
(i) Within the first sixty (60)
days after (aa)
installation completion of a Product, if Supplier has
installed the
Product or (ab) delivery, if Supplier is not installing
the Product, if
Ordering Company notifies Supplier of a defect or
nonconformity of
Products to the Specifications, that does not appear
to be curable
through repair or replacement within a reasonable time
period, Ordering
Company will be entitled, at its option, to a refund of
the Product's
purchase price and installation charges and the
associated Licensed
Materials charges. Should Ordering Company seek such a
refund, it will
provide Supplier such cooperation as necessary to
enable Supplier to
remove the Product from Ordering Company's premises, if
necessary. In
the event of such refund, Ordering Company may also
return for credit
any other Products intended for use with the
defective Product that
cannot be applied to another use by Ordering Company
and may cancel,
without liability for cancellation charges, any pending
Orders for such
Product.
(ii) After sixty (60) days from
(aa) installation
completion of a Product, if Supplier has installed the
Product or (ab)
delivery, if Supplier is not installing the Product,
with respect to a
defect or nonconformity of Products to Supplier's
Specifications,
Supplier shall take the following action promptly:
(A) Supplier, at its option,
shall attempt
first to repair or replace such Product without
charge or, if not
feasible, provide a refund or credit based on the
original purchase
price, installation charges paid by Ordering Company
if installed by
Supplier, and the associated Licensed Materials
charges. Ordering
Company must return Product to Supplier for repair
and replacement,
except as noted in Sections 8.2 (c) (ii) (B) and (C).
In the event of
such refund, Ordering Company may also return for
credit any other
Products intended for use with the defective Product
that cannot be
applied to another use by Ordering Company and may
cancel, without
liability for cancellation charges, any pending
Orders for such
Product.
(B) Supplier, in the case of
any service
affecting defect, shall either (1) repair such
defect in the field
using best reasonable efforts to avoid any service
interruption; or (2)
immediately replace the defective Product, Licensed
Material, or
Service with a working replacement, at Supplier's
expense, for the time
that it takes the original Product, Licensed Material, or
Service to be
repaired. At Ordering Company's option, Ordering
Company may elect to
retain the replacement Product, Licensed Material,
or Service if
substitution of the original after repair could cause a
further service
interruption. Where Supplier has elected to repair or
replace a Product
(other than Cable and Wire Products) which has not
been installed by
Supplier and Supplier ascertains that the Product
is not readily
returnable by Ordering Company, Supplier will repair
or replace the
Product at Ordering Company's site. For the purposes
of Sections 8.2
(c) (ii) (B) and (C) and Section 8.2 (d), Cable and Wire
Products shall
mean fiber optics and associated products and
copper cable and
associated products, including, but not limited to,
interbay cable,
closures, arrays, and mounts.
(C) With respect to Cable and
Wire Products
which Supplier has ascertained are not readily
returnable for repair,
whether or not installed by Supplier, Supplier may elect
to repair the
Cable and Wire Products at Ordering Company's site.
(d) If Supplier has elected to repair or replace a defective
Product, Ordering Company is responsible for removing and reinstalling the
Product and, in addition, for on-site repair or replacement of cable and wire
products, Ordering Company must make the Product accessible for repair or
replacement, and is responsible to restore the site.
(e) Products returned for repair or replacement will be
accepted by Supplier only in accordance with its instructions and procedures for
such returns. The transportation expense associated with returning such Product
to Supplier shall be borne by Ordering Company. Supplier shall pay the cost of
transportation of the repaired or replacing Product to the destination
designated by Ordering Company. The same Product or part shall not be returned
by Supplier to Ordering Company with the notation no-trouble-found (NTF) on more
than two (2) occasions. On the third occasion that a Product or part has been
classified by Supplier as NTF, the Product or part shall be returned to Supplier
and shall become Supplier's property. Supplier shall ship a new, refurbished, or
reconditioned replacement to Ordering Company for the returned Product or part
at no charge for that Product under warranty. For out of warranty Product,
Supplier shall ship a new, refurbished, or reconditioned replacement to Ordering
Company for the returned Product or part at Supplier's current negotiated price
for the production equipment element/component.
(f) The defective or nonconforming Products or parts which are
replaced shall become Supplier's property. Supplier may use either new,
remanufactured, reconditioned, refurbished, or functionally equivalent Products
or parts in the furnishing of repairs or replacements under this Agreement.
Unless otherwise agreed or unless unavailable, Supplier shall use new components
in the repair of Products.
(g) If a Product for which warranty Service is claimed is not
defective or is in conformance, Ordering Company shall pay Supplier's costs of
handling, inspecting, testing, and transporting, and, if applicable, reasonable
traveling and related expenses as referenced in Section 3.1 (g), PRICES.
(h) Supplier makes no warranty with respect to defective
conditions or nonconformities resulting from the following: Ordering Company
modifications, misuse, neglect, accident or abuse, improper wiring, repairing,
splicing, alteration, installation, storage or maintenance other than by
Supplier, use in a manner not in accordance with Supplier's or vendor's
Specifications or operating instructions or failure of Ordering Company to apply
previously applicable Supplier modifications and corrections which were
available without extra charges and which Ordering Company had had reasonable
opportunity to apply. In addition, Supplier makes no warranty with respect to
Products which have had their serial numbers or month and year of manufacture
removed or altered and with respect to expendable items, including, without
limitation, fuses, light bulbs, motor brushes, and the like.
(i) THE FOREGOING PRODUCT WARRANTIES ARE
EXCLUSIVE AND ARE IN
LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT
NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, EXCEPT FOR
(a) TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY FOR WHICH
SUPPLIER IS HELD
LIABLE AND (b) THE REMEDY PROVIDED IN SECTION 5.1(e),
ORDERING COMPANIES'
REMEDIES, ORDERING COMPANY'S SOLE AND EXCLUSIVE REMEDY SHALL
BE SUPPLIER'S
OBLIGATION TO REPAIR, REPLACE, CREDIT, OR REFUND AS SET FORTH
ABOVE IN THIS
WARRANTY.
8.3 CONTINUING PRODUCT SUPPORT - PARTS AND
SERVICES.
(a) In addition to repairs provided for under Product
Warranty, Supplier offers repair services and repair parts in accordance with
Supplier's repair and repair parts practices and mutually agreed upon terms and
conditions then in effect for Supplier's Manufactured Products furnished
pursuant to this Agreement. Such repair Services and repair parts shall be
available while Supplier is manufacturing or stocking such Products or repair
parts, and in any event for ten (10) years from Supplier's last shipment of a
host system to Ordering Company for Supplier's 5ESS Switch System, and five (5)
years or the duration of the period of the host system, whichever is longer, for
other 5ESS Switch Products sold to Ordering Company as an addition to an
existing 5ESS Switch System. The period for all other Supplier's Manufactured
Products is five (5) years after such Product's discontinued availability
effective date unless modified by Supplemental Agreements. Supplier may use
either new, remanufactured, reconditioned, refurbished, or functionally
equivalent Products or parts in the furnishing of repairs or replacements under
this Agreement.
(b) If after the agreed to support period Supplier is unable
to provide repair part(s) and/or repair service (s) and a functionally
equivalent replacement has not been designated, Supplier shall advise Ordering
Company, by written notice prior to such discontinuance to allow Ordering
Company to plan appropriately, and if Supplier is unable to identify another
source of supply for such repair part(s) and/or repair service(s), Supplier
shall provide Ordering Company, upon request, with nonexclusive licenses for
manufacturing drawings and Specifications of raw materials and components to the
extent Supplier can grant such licenses, so that Ordering Company will have
sufficient information to have manufactured, or obtain such Service or parts
from other sources. License terms for the foregoing manufacturing drawings,
Specifications, and related documentation, such as manufacturing shop
instructions, test programs and test instructions, including charges mutually
agreed to, will be in accordance with Supplier's licensing procedures then in
effect. In addition to the above licenses, if requested by Ordering Company,
Supplier shall provide, at mutually agreeable prices, all dedicated tools and
test beds necessary for Ordering Company to test such Products.
(c) With respect to Vendor Items, and subject to Section
1.118, VENDOR ITEMS, if during the agreed to support period, Supplier's vendor
terminates production of repair parts or repair services, Supplier will use
reasonable efforts to provide the repair parts or repair
services or secure sources for such parts or services. However, if no other
sources or functionally equivalent replacement can be secured, Supplier shall
advise Ordering Company, by written notice prior to such discontinuance to allow
Ordering Company to plan appropriately. Supplier shall provide Ordering Company,
upon request, a detailed list of all commercially available parts and components
purchased by Supplier disclosing the part number, name and location of supplier,
and prices of the purchased items.
(d) With respect to Vendor Items and subject to Section 1.120
if after the agreed to support period, Supplier is unable to provide repair
part(s) and/or repair service(s) and a functionally equivalent replacement has
not been designated, Supplier shall advise Ordering Company, by written notice
prior to such discontinuance to allow Ordering Company to plan appropriately,
and if Supplier is unable to identify another source of supply for such repair
part(s) and/or repair service(s), Supplier shall provide Ordering Company, upon
request, a detailed list of all commercially available parts and components
purchased by Supplier disclosing the part number, name and location of supplier,
and prices of the purchased items.
8.4 TECHNICAL SUPPORT OF PRODUCTS. Supplier shall, in addition
to its obligations under Product Warranty, make available, at mutually agreeable
rates, ongoing technical support including, but not limited to the expertise to
identify, isolate, and resolve problems, that Supplier customarily provides to
its customers, including telephone assistance, field Service, and technical
consultation Service for Products provided under this Agreement for a period of
ten (10) years after Supplier's last shipment of a host system to Ordering
Company for Supplier's 5ESS Switch System, and five (5) years or the duration of
the period of the host system, whichever is longer, for other 5ESS Switch
Products sold to Ordering Company as an addition to an existing 5ESS Switch
System. The period for all other Supplier's Manufactured Products is five (5)
years after such Product's discontinued availability effective date unless
modified by Supplemental Agreements.
8.5 DOCUMENTATION. Supplier shall furnish to Ordering Company
at no additional charge and grant Ordering Company the right to use one copy of
the documentation for the Products provided hereunder for the purpose of
operating and maintaining such Products. Such documentation will be that
customarily provided by Supplier to its customers at no additional charge.
Supplier shall also furnish to Ordering Company the Application and Planning
Guide or a document similar to it. If Ordering Company wishes to perform its own
installation, Supplier, at an additional charge, if applicable, shall furnish to
Ordering Company and grant Ordering Company the right to use one copy of the
documentation for the Products provided hereunder for its evaluation and
installation purposes. The foregoing grant is subject to Section 4.1, USE OF
INFORMATION, and does not include the right to disclose the content of such
documents to persons other than employees of Ordering Company, its Affiliates,
representatives, or contractors who will be involved in the Work, provided,
however, that upon written agreement of Ordering Company to pay any applicable
licensing fee in accordance with ordinary commercial practices, persons with a
need to know in connection with installation of the specific Product shall be
allowed to use such documentation. Such documentation shall be
provided prior to, included with, or shortly after the shipment
of the Products
from Supplier to Ordering Company. Additional copies of the
documentation are
available at mutually agreeable prices.
8.6 SPECIFICATIONS. Upon request, Supplier shall provide to
Ordering Company, at no charge, and grant Ordering Company the right to use a
copy of Supplier's available commercial Specifications applicable to Products
orderable hereunder for the purpose of operating and maintaining Products.
Additional copies are available at mutually agreeable prices. Supplier shall
also furnish to Ordering Company the Application and Planning Guide or a
document similar to it. If Ordering Company wishes to perform its own
installation, Supplier, at an additional charge if applicable, shall furnish to
Ordering Company and grant Ordering Company the right to use one copy of the
documentation for the Products provided hereunder for its evaluation and
installation purposes. The foregoing grant is subject to Section 4.1, USE OF
INFORMATION, and does not include the right to disclose the content of such
documents to persons other than employees of Ordering Company, its Affiliates,
representatives, or contractors who will be involved in the Work provided,
however, that upon written agreement of Ordering Company to pay any applicable
licensing fee in accordance with ordinary commercial practices, persons with a
need to know in connection with installation of the specific Product shall be
allowed to use such documentation.
8.7 EQUIPMENT TESTING.
(a) Supplier is responsible for the performance of standard
factory production tests in the absence of any other testing mutually agreed to
by the parties. Such tests shall be performed in accordance with Supplier's
normal testing and quality control procedures in order to insure that the
equipment provided hereunder meets all applicable Specifications. At the option
of Ordering Company, Supplier shall furnish a copy of its high level test and
quality control process descriptions to Ordering Company prior to initiating any
such testing and Ordering Company, at its expense and with Supplier's agreement,
may request in advance to witness any of the testing by giving prior notice to
Supplier. Such request must be received with sufficient advance notice that the
observation would not delay the completion of a test. Supplier also agrees to
maintain detailed records of all such tests and to provide Ordering Company, at
no charge, and if requested, with written results of these tests. Supplier
reserves the right to make changes to its test and quality control process
descriptions without prior notification to Ordering Company.
(b) In the event that the equipment fails to meet the
applicable Specifications and test requirements, Supplier shall make the
necessary adjustments or repairs and repeat the applicable tests. If, in the
opinion of Supplier, the failure rates experienced during these tests become
unsatisfactory, all shipments of like equipment to Ordering Company shall be
suspended unless otherwise authorized by Ordering Company in writing.
(c) If Supplier is unable or unwilling to correct, at
Supplier's expense, any failure to meet the applicable Specification and test
requirements found during testing provided
hereunder within thirty (30) days of such discovery or such longer period as may
be mutually agreed upon, Ordering Company, at its option, shall be relieved of
all responsibilities under this Agreement with respect to such equipment or the
portion thereof which was not corrected.
8.8 ENVIRONMENTAL/RELIABILITY TESTING. Upon reasonable request
by Ordering Company and at a mutually agreeable charge, Supplier shall perform
environmental testing of the production equipment in accordance with Ordering
Company's Technical Reference-PUB 51001 entitled NETWORK EQUIPMENT-BUILDING
SYSTEM (NEBS) GENERAL EQUIPMENT REQUIREMENTS, Sections 3, 4, and 5 and
Bellcore's Technical Reference-TR-NWT-000063 entitled NETWORK EQUIPMENT-BUILDING
SYSTEM (NEBS) GENERIC EQUIPMENT REQUIREMENTS. Supplier agrees to report the test
results to Ordering Company. If such test results already exist, Supplier will
furnish test results to Ordering Company at no additional charge.
8.9 FAILURE MODE ANALYSIS OF FAILED COMPONENTS. Supplier shall
perform failure mode analysis on components of Products purchased by Ordering
Company with a persistent history of failure to determine the specific cause of
the component failure. The results of this analysis and planned corrective
action shall be provided to Ordering Company within fourteen (14) calendar days
of the completion of the analysis.
8.10 FLOOR PLAN DATA SHEETS. Supplier shall, at Ordering
Company's request, at a mutually agreeable price, and within a reasonable
timeframe after product design completion, deliver to Ordering Company a
completed Floor Plan Data (FPD) sheet, for equipment sold hereunder. Such FPD
sheets shall be prepared in accordance with the requirements of Technical
Reference 51005, dated December 1984, as amended from time to time.
8.11 MONTHLY ORDER AND SHIPMENT REPORTS. Supplier agrees to
render monthly Order and shipment reports at a mutually agreeable charge, if
applicable, on or before the fifteenth (15th) working day of the succeeding
month: (a) Monthly Order and shipment reports containing the information
required in a mutually agreeable format; (b) at the request of Ordering Company,
monthly summaries of actual shipping intervals achieved on material Ordered
under this Agreement; (c) at the request of Ordering Company, monthly repair
summaries on material including (i) number of units received for repair, (ii) a
breakdown of in-warranty repairs versus out-of-warranty repairs, (iii) summary
of all repairs for no trouble found, and (iv) number of units repaired within
same day, 24 hours, and one to seven days, and (d) at the request of Ordering
Company, monthly report identifying the number of units returned and repaired by
Supplier (RS&R Open Order Report).
8.12 RADIATION ASSISTANCE. If Product provided to Ordering
Company in compliance with applicable FCC rules are thought to provide
interference to others, Supplier shall provide to Ordering Company information
relating to methods of suppressing such interference at a mutually agreeable
price and Ordering Company shall pay the cost of suppressing such interference.
8.13 MARKING. All material furnished under this Agreement
shall be marked for identification purposes in accordance with mutually agreed
upon marking specifications set forth in any Supplemental Agreement or Order
referencing this Agreement and as follows: (a) with Supplier's model/serial
number; and (b) with month and year of manufacture. In addition, Supplier agrees
to add any other reasonable identification which might be requested by Ordering
Company such as, but not limited to, distinctive marks conforming to Ordering
Company's Serialization Plan. Charges, if any, for such additional
identification marking shall be as agreed upon by Supplier and Ordering Company.
This clause does not reduce or modify Supplier's obligations under Section 4.4,
TRADEMARKS, included in this Agreement.
8.14 PERIODIC PRODUCT QUALIFICATION REVIEWS. Supplier shall
conduct periodic product qualification ("PPQ") reviews to ensure that the
Product continues to meet its design intent. The PPQ reviews are a Bellcore
requirement and results are reported to Bellcore. If requested, Supplier shall
provide to Ordering Company the results of such reviews.
8.15 MAINTENANCE/POST WARRANTY. Supplier may offer various
programs which provide services beyond the warranty repairs above. At Ordering
Company's option, Ordering Company may purchase these Repair Service and Return
("R/SAR"), Spares Exchange Service ("SES"), and other offerings at prices, terms
and conditions to be mutually agreed upon.
8.16 PLANNING INFORMATION FOR ORDERS FOR COMMERCIALLY
AVAILABLE PRODUCTS. (a) This planning information addresses the process for all
Orders of Supplier's commercially available Products. It is not applicable to
custom Products or special arrangements on such things as inventory or
manufacturing (i.e. any custom or legacy products requiring unique procedures,
such as NGLN, DDM1000, FT-Series G and projects such as Customer Connectivity).
Special Product or unique arrangements will require a Supplemental Agreement to
document the agreements made specifically for that Product or project only.
(b) Supplier and Ordering Company shall identify Products or
technologies that will require special arrangements and for which Supplemental
Agreements must be negotiated.
(c) Ordering Company will provide to Supplier on a monthly
basis via the Customer Demand Planning (CDP) mechanized system, a forecast of
Product requirements consisting of funded, unfunded, and a projection of
unforecasted demand. This forecast is considered unconstrained and will be
provided for a rolling twelve (12) months as well as an aggregate forecast for
the subsequent year. It will represent forecasted demand by fiscal month.
(d) A current listing of Products that are presently
forecasted by Network Services Division/Inventory Management ("NSD/IM") will be
mutually agreed upon and updated periodically as the scope of the forecasting
process changes. Forecasts furnished by Ordering Company will eventually
encompass all of the network Product requirements for Ordering Companies.
(e) Orders will be placed within Supplier's planning interval
documented in Exhibit 2-1, Planning Intervals, to the extent possible, and will
constitute a commitment to buy. Ordering Company will compare the monthly
forecast with the semi-annual planning forecast being provided in April and
September, and will reconcile the two accordingly. In the future, if the
frequency of these forecasts changes, a similar reconciliation will be performed
on all Product elements that are provided in the planning forecasts. Ordering
Company and Supplier will review Ordering Company's forecasting accuracy
quarterly with the goal of obtaining 80% forecasting accuracy. Ordering Company
will work with Supplier to provide Product level requirements on a monthly basis
especially for those forecasts within the six (6) month window as part of the
rolling forecast.
(f) CUSTOMER DEMAND PLANNING (CDP). Should Ordering Company
request a programming change to the CDP system that would benefit external users
of the CDP system, Supplier shall make such modification at no cost to Ordering
Company. If Ordering Company has a request for a modification to the CDP system
that is specific to Ordering Company's needs, such modification to the system
shall be made at a cost mutually agreed upon by Ordering Company and Supplier.
Supplier shall provide Ordering Company with CDP system support via the
1-800-CDP-8845 Hotline at no cost to Ordering Company.
(g) METRICS. Ordering Company and Supplier agree to monitor
forecast accuracy on a monthly basis. Forecast accuracy measurements shall be
based upon a two month lead time for each forecasted item. CDP shall be the
vehicle for gathering data on forecast accuracy and shipping performance.
Ordering Company will monitor its forecasts and seek to achieve improvements in
accuracy as described in Exhibit 8-3. Supplier will monitor and seek to achieve
improvements on performance to customer requested completion date (CRCD), and
performance to published order intervals. This is an informal process and does
not imply penalty for non-performance. The 1996 metric goals are set forth in
Exhibit 8-3. Joint goals and metrics for future years will be mutually
negotiated for continuous improvement.
(h) FORECASTING PROCESS MONITORING.
Forecasting Process
Performance Goals will be monitored on an ongoing basis by the Inventory
Management Process Management Team and the Forecasting Quality
Improvement Team.
Additional meetings to review forecasting specifics may be scheduled as needed
by either Ordering Company or Supplier.
ARTICLE IX
SOFTWARE
9.1 GENERAL. (a) The provisions of this Article 9 apply to the
furnishing of Software by Supplier to Ordering Company pursuant to this
Agreement. Supplier's use of certain Licensed Materials may be restricted by
mutual agreement of the parties as specified in a Supplemental Agreement. The
ownership interests and rights of the parties in Custom Software, in addition to
the applicable rights set forth in this Article, shall be established on a
case-by-case basis in subsequent Supplemental Agreements.
(b) To the extent that any provision set forth in this Article
conflicts with any provision set forth elsewhere in this Agreement, this Article
shall control.
(c) Software in this Article means both Custom
Software and
Licensed Materials.
9.2 LICENSE. (a) Unless otherwise specified in a Supplemental
Agreement, upon delivery of Licensed Materials, Supplier grants to Ordering
Company a personal, nontransferable, and nonexclusive license pursuant to this
Agreement to use Licensed Materials at a site(s) or, in the case of a Designated
Processor, with either the Designated Processor or temporarily on any comparable
replacement if the Designated Processor becomes inoperative, until the
Designated Processor is restored to operational status. Ordering Company shall
use Licensed Materials only for its own internal business operations.
(b) Ordering Company shall not sublicense such Licensed
Materials, nor modify, decompile, or disassemble Licensed Material furnished
solely as object code to generate corresponding Source Code, provided, however,
that Ordering Company shall be authorized to sublicense Software in connection
with its rights in Section 1A.1, PURPOSE AND SCOPE OF THIS AGREEMENT, to dispose
of Products and Licensed Materials.
9.3 SOFTWARE. On the delivery date, Supplier shall furnish to
Ordering Company, at the fee specified in the Order or Supplemental Agreement,
at least the following basic items: (a) Object Code stored in a medium
compatible with the equipment described in Supplier's Specifications or the
applicable Supplemental Agreement, and identified in the Order; (b) user
documentation which Supplier normally furnishes to customers with the Licensed
Materials at no additional charge, and any user documentation specified in the
applicable Supplemental Agreement; (c) if not previously provided, the required
machine configuration; and (d) Source Code if licensed or furnished by Supplier
as part of the Software ordered hereunder.
9.4 ACCESS TO SOURCE CODE.
(a) With respect to Software which has not been the subject of
a notice of discontinued availability pursuant to Section 9.20, NOTIFICATION OF
DISCONTINUED AVAILABILITY OF SOFTWARE, if Supplier is declared bankrupt or
refuses to perform maintenance of the Software, or fails to provide for the
performance of maintenance of the Software to the extent that Ordering Company
is unable to use the Software for its intended purpose and perform maintenance,
then Supplier, or others acting on behalf of Supplier, shall furnish to Ordering
Company (under a suitable license agreement, if applicable), Supplier's then
existing Software Source Code, Software development programs, and associated
documentation for such standard version to the extent necessary for Ordering
Company to maintain and enhance for its own use the standard version of that
Software for which it has a perpetual, non-exclusive right to use.
(b) If Ordering Company's use of the Software Source Code
provided pursuant to Section 9.4(a) involves use or copying of copyrighted
material or the practice of any invention covered by a patent, Supplier shall
not assert the copyright or patent against Ordering Company for use of the
Software Source Code as originally provided by Supplier.
9.5 RESTRICTIONS AND CONFIDENTIALITY. (a) Except for any part
of such Licensed Materials which is or becomes generally known to the public
through acts not attributable to Ordering Company, Ordering Company shall hold
such Licensed Materials in confidence, and shall not, without Supplier's prior
written consent, disclose, provide, or otherwise make available, in whole or in
part, any Licensed Materials to anyone, except to its employees having a
need-to-know . Ordering Company shall not copy Licensed Materials embodied in
Firmware. Ordering Company shall not make any copies of any other Licensed
Materials except as necessary in connection with the rights granted hereunder.
Ordering Company shall comply fully with the proprietary notice requirements set
forth in Section 4.1, USE OF INFORMATION, and the record keeping obligation of
Section 6.21, RECORD RETENTION.
(b) Ordering Company shall take appropriate action, by
instruction, by agreement, or otherwise, with all persons permitted access to
the Licensed Materials so as to enable Ordering Company to satisfy its
obligations under this Agreement.
(c) When the Licensed Materials are no longer needed by
Ordering Company, or if Ordering Company's license is canceled or terminated,
Ordering Company shall return all copies of such Licensed Materials to Supplier
or follow written disposition instructions provided by Supplier.
(d) Custom Software and Related Documentation shall be treated
as proprietary information of a party or parties in accordance with Section 4.1,
USE OF INFORMATION.
9.6 INSTALLATION OF SOFTWARE. (a) Where Ordering Company is
responsible for installation of Software, Supplier's sole responsibility is to
deliver the Software to Ordering Company on or before the scheduled Delivery
Date specified in the Order or Supplemental Agreement. However, if Supplier is
expressly responsible for such installation, Supplier shall deliver the Software
to Ordering Company in sufficient time for it to be installed on or before the
scheduled Installation Complete Date specified in the Order or Supplemental
Agreement, and Supplier shall complete its installation and associated testing
on or before such date.
(b) Where Ordering Company has assumed responsibility for the
installation of newly licensed Software, Supplier will, at Ordering Company's
request and without charge provide for the first such installation a reasonable
level of technical assistance, which may include on-site assistance, when
Ordering Company encounters installation difficulties. For all subsequent
installations of such Software by Ordering Company, unless otherwise stipulated
under conditions of an Order or Supplement Agreement,
Supplier reserves the
right to charge Ordering Company for any Ordering
Company-requested assistance.
9.7 OPTIONAL SOFTWARE FEATURES. Licensed Materials provided to
Ordering Company under this Agreement may contain optional features which are
separately licensed and priced. Ordering Company agrees that such optional
features will not be activated without written authorization from Supplier and
Ordering Company's payment of the appropriate license fees. If, in spite of
Ordering Company's best effort to comply with this restriction, such features
are activated and used by Ordering Company, Ordering Company agrees to so notify
Supplier promptly and to pay Supplier the license fees for the activated
features, as well as the reasonable cost of money for the period in which such
features were activated.
9.8 CENTRALIZED MAINTENANCE. (a) Ordering Company may specify
in an Order or Supplemental Agreement that, for centralized maintenance
purposes, all Software changes, including Enhancements, provided by Supplier
shall be provided only to Ordering Company's Centralized Support Organization.
Supplier will, in that event, be responsive to maintenance requests which
Ordering Company's Centralized Support Organization issues. This Organization
will be responsible for Software application, initial Acceptance testing and
distribution of the Software to all licensed installations.
(b) Subject to payment of all applicable fees, Supplier grants
Ordering Company the right to transmit the Software by means of data links to
each licensed installation.
(c) Supplier grants to Ordering Company, at a fee to be
negotiated in a Supplemental Agreement, a license to use a copy of the Software
for centralized maintenance purposes only. Supplier shall provide this
maintenance copy of the Software in response to an Order requesting same. The
maintenance copy provided to Ordering Company's Centralized Support Organization
will be used only to perform systems or application support functions for
Ordering Company's application programmers.
9.9 ENHANCEMENTS. Supplier shall offer to Ordering Company
during the term of an Order or Supplemental Agreement, at an agreed upon charge,
if any, all Software Enhancements and Related Documentation, generally made
available by Supplier. All Enhancements provided to Ordering Company shall be
considered Software subject to the provisions of an Order or Supplemental
Agreement.
9.10 INTELLECTUAL PROPERTY RIGHTS. (a) Title to the Licensed
Material and to Intellectual property rights herein shall remain in Supplier or
Supplier's licenser, as applicable. Ordering Company shall have the right to
make the number of copies of the Licensed Materials solely for use as authorized
in an Order or Supplemental Agreement, and archival copies as appropriate.
Ordering Company however, shall not reproduce copies of the Licensed Materials
for the purpose of supplying it to others except individuals authorized herein.
(b) All Licensed Material (whether or not part of Firmware)
furnished by Supplier, and all copies thereof made by Ordering Company,
including translations, compilations, and partial copies thereof, are, as
between Ordering Company and Supplier, solely the property of Supplier.
(c) Title to Custom Software shall be specified
in the
applicable Supplemental Agreement.
9.11 TRAINING AND TECHNICAL SERVICE. Supplier shall provide:
(a) assistance and advice, as may be specifically requested by Ordering Company
necessary to assist in the testing and use of the Software under the terms and
conditions specified in the Order or Supplemental Agreement, and (b) at no
additional charge, any training as it normally provides without charge to other
customers.
9.12 MODIFICATIONS. In those instances where Source Code is
provided, Ordering Company may make Modifications to the Software as permitted
in a Supplemental Agreement. Ordering Company shall have all rights, title and
interest to any Modifications and resulting derivative works and the
Intellectual Property Rights in such Modifications or works. Moreover, unless
otherwise agreed by the parties, nothing shall limit Ordering Company's right to
reproduce and use the modified Software, provided however, any portion or aspect
of the modified Software which is licensed from Supplier shall continue to be
subject to all the provisions of the license, and nothing contained herein
grants to Ordering Company any rights to use the Software other than as recited
in the license.
9.13 REDESIGNATION OR TRANSFER OF DESIGNATED SITE OR COMPUTER.
(a) If Ordering Company's use of the Software is limited to a designated site or
a Designated Processor, the provisions of this clause shall apply. A
redesignation shall refer to the movement of Software to upgraded equipment. A
transfer shall refer to a temporary change of site of the Software.
(b) Without an additional charge or fee or any requirement for
any additional license, except where feature or size sensitive units are a
factor, Ordering Company may:
(i) Redesignate the site or
Designated Processor at
which the Software will be used and shall notify
Supplier of the new
site or Designated Processor and the effective
date of the
redesignation; and
(ii) Concurrently operate the
Software at another
site or Designated Processor for a period not to
exceed three (3)
months for the purpose of redesignating the assigned
using site.
(c) The license granted for a designated site or Designated
Processor may be transferred with notice to Supplier (within a reasonable time
after such transfer) and at no additional charge or fee to Ordering Company to a
backup computer if the designated site or
Designated Processor is inoperative due to malfunction, due to performance of
preventive or remedial maintenance, due to engineering changes or due to changes
in features or model, until the designated site or Designated Processor is
restored to operative status and processing of the data already entered in the
backup computer has been completed. Supplier may charge Ordering Company for
services requested by Ordering Company in support of such relocation.
9.14 SOFTWARE ACCEPTANCE. (a) Upon installation
completion of
the Software in the Integrated Test Network (ITN) or
the First Field
Application, Ordering Company has the right to conduct an
Acceptance Test.
Unless otherwise agreed by the parties, Ordering Company shall have an
Acceptance Test Period of thirty (30) consecutive calendar days to conduct this
test. The Software shall be deemed accepted by Ordering Company unless Ordering
Company notifies Supplier in writing to the contrary within the Acceptance Test
Period described above. If the Software fails the Acceptance Test during the
Acceptance Test Period, Supplier shall use its reasonable efforts to correct
each error to minimize the Acceptance delay, and the Acceptance Date shall be
extended on a day-to-day basis until the Software, as modified, is accepted.
Acceptance of a particular release of Software in the ITN or in the First Field
Application shall constitute Acceptance of all copies of such Software to be
provided Ordering Company, regardless of when each such copy of such Software is
installed on its Designated Processor.
(b) If Ordering Company elects in the Order not to perform
Acceptance Tests for any Software, the Acceptance Date for such Software shall
be the Delivery Date if not installed by Supplier or the Installation Complete
Date if installed by Supplier, as applicable.
(c) For an Acceptance Test conducted by Ordering Company on
newly licensed Software, Supplier will, at Ordering Company's request and
without charge, provide a reasonable level of technical assistance to Ordering
Company when difficulties are encountered by Ordering Company.
(d) In the event that Software has not passed the Acceptance
Test within six (6) months after the Delivery Date, at Ordering Company's
option, (i) Ordering Company shall return all copies of the Software to Supplier
and Supplier shall reimburse Ordering Company for any fees (e.g., license, R&D,
etc.) paid for such Software or (ii) if mutually agreed to by the parties,
Ordering Company may retain the Software at an equitable adjustment in the fees
as may be agreed to by the parties, in which case the Software shall be deemed
accepted.
9.15 SOFTWARE WARRANTY. (a) Supplier warrants to
Ordering
Company all of the following:
(i) The Software will be free
from significant
errors, will conform to and perform in
accordance with the
Specifications. The media containing the Software
will be free from
defects in material and workmanship. The Software will
be compatible
with and may be used in conjunction with other
Software and the
hardware as described in the Specifications.
(ii) Work will be performed in accordance with
industry standards.
(iii) There are no copy
protection or similar
mechanisms within the Software which will, either now or
in the future,
interfere with the rights granted to Ordering Company.
(iv) Supplier has the right to grant
the licenses as
granted herein, and has not done anything to
interfere with the
exercise of Ordering Company's rights.
(v) At the time of delivery, to
Supplier's knowledge,
the Software does not contain any malicious code,
program, or other
internal component (e.g. computer virus, computer worm,
computer time
bomb, or similar component), which could damage,
destroy, or alter
Software, Firmware, or hardware or which could, in any
manner, reveal,
damage, destroy, or alter any data or other
information accessed
through or processed by the Software in any manner.
Supplier shall
immediately advise Ordering Company, in writing,
upon reasonable
suspicion or actual knowledge that the Software provided
may result in
the harm described above.
(b) All warranties shall survive inspection,
Acceptance and
payment.
(c) If, under normal and proper use during the applicable
Warranty Period specified in Exhibit 8-1 Software proves to have a defect which
materially affects its performance in accordance with the applicable
Specifications and Ordering Company notifies Supplier in writing of such defect
promptly after Ordering Company discovers such defect and follows Supplier's
instructions, if any, regarding return of defective Software, Supplier shall,
attempt first to either correct or replace such Software without charge, or if
correction or replacement is not feasible, provide a refund or credit based on
the original license fee. In addition, should a defect in Software prevent in
whole or in part the use of any Product(s) that cannot be applied to another use
by Ordering Company, Ordering Company may, at its election, also return such
Product(s) for a full refund.
(d) Software returned for correction or replacement will be
accepted by Supplier only in accordance with its instructions and procedures for
such returns. The transportation expense associated with returning such Software
to Supplier shall be borne by Ordering Company. Supplier shall pay the costs of
transportation of the corrected or replacing Software to the destination
designated by Ordering Company.
(e) If Software for which warranty Service is claimed is not
defective or nonconforming, Ordering Company shall pay Supplier's costs of
handling, inspecting, testing, and transporting and, if applicable, traveling
and related expenses.
(f) Supplier makes no warranty with respect to
defective
conditions or nonconformities resulting from the following:
modifications,
misuse, neglect, or accident; events outside Supplier's control;
installation,
use of Software or Software maintenance in a
manner not in accordance with Supplier's Specifications, operating instructions,
or license-to-use; or failure of Ordering Company to apply previously applicable
Supplier modifications and corrections. In addition, Supplier makes no warranty
with respect to defects related to Ordering Company's data base errors.
Moreover, no warranty is made that Software will run uninterrupted or error
free.
(g) If any Software is lost or damaged during the Warranty
Period or such other time as Supplier maintains the Software as a generally
available product offering, while in the possession of
Ordering Company,
Supplier will promptly replace the Software at the established charge for
providing the associated media unless such is provided by Ordering Company.
(h) If an Order specifies that Ordering Company's use of the
Software is limited to a designated site or a Designated Processor, the
provisions of this clause shall apply. If Ordering Company performs installation
and elects to perform applicable tests for any Software, the warranty for such
Software shall commence on the Delivery Date. If Supplier performs installation
of any Software, the Warranty for such Software shall commence upon installation
completion.
(i) If Software is purchased with a license for multiple sites
(e.g., unlimited replication rights, or limited multiple replication rights),
the warranty for such Software shall commence upon Acceptance by Ordering
Company in the ITN or in the First Field Application, as appropriate.
(j) Supplier warrants that installation of any new Software
will not shorten or lessen the warranty of existing Software.
(k) THE FOREGOING SOFTWARE WARRANTIES ARE
EXCLUSIVE AND ARE IN
LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
EXCEPT FOR (a)
TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY FOR WHICH SUPPLIER
IS HELD LIABLE
AND (b) THE REMEDY PROVIDED IN SECTION 5.1(e), ORDERING
COMPANIES' REMEDIES,
ORDERING COMPANY'S SOLE AND EXCLUSIVE REMEDY SHALL BE SUPPLIER'S
OBLIGATION TO
CORRECT, REPLACE, CREDIT, OR REFUND AS SET FORTH ABOVE IN THIS
WARRANTY.
9.16 CANCELLATION OF LICENSE. If Ordering Company fails to
comply with any of the material terms and conditions of this Agreement, Order or
Supplemental Agreement and such failure continues beyond ten (10) days after
receipt of written notice thereof by Ordering Company, the conditions of Article
5A, ARBITRATION; DISPUTE RESOLUTION shall apply. Supplier's cancellation of the
license at issue shall be tolled pending the outcome of the Dispute Resolution
process. Simultaneous with initial invocation of such process, Ordering Company
shall deposit and have held in escrow, until such dispute is resolved, an amount
equal to the current market price of the license in question.
9.17 RELATED DOCUMENTATION. Supplier shall furnish to Ordering
Company, at no additional charge and grant Ordering Company the right to use one
copy of the Related Documentation for Software furnished by Supplier pursuant to
this Agreement for the sole purpose of operating and maintaining such Software.
Such Related Documentation will be that customarily provided by Supplier to its
customers for such Software, consistent with the vintage, options and feature of
the system on which it operates. Such Related Documentation shall be provided
prior to, included with, or shortly after provision of Software by Supplier to
Ordering Company. Additional copies of the Related Documentation are available
at prices set forth in Supplier's Price List.
9.18 ADDITIONAL RIGHTS IN LICENSED MATERIAL. (a) The
additional rights granted by Supplier to Ordering Company herein apply to 4ESS
Switch, 5ESS Switch, 2NCP, SLC2000, FT2000, DDM, and DACS Product families. Both
parties agree that these same rights may be extended to other Products by mutual
agreement and documented within a Supplemental Agreement.
(b) Ordering Company may transfer its right to use Licensed
Materials furnished under this Agreement without the payment of an additional
right-to-use fee by transferee, except where feature or size sensitive units are
a factor, but only under the following conditions:
(i) Such Licensed Materials shall be
used only within
the country in which it is currently deployed, however,
Supplier will
not unreasonably withhold its consent to use outside
such country
provided the proprietary information associated with
the use of the
Software can be adequately protected;
(ii) Except as otherwise provided in
the Agreement,
the right to use such Licensed Material may be
transferred, only
together with the Product with which Ordering Company
has a right to
use such Licensed Material, and such right to use the
Licensed Material
shall continue to be limited to use with such Product;
(iii) Before any such Licensed
Material shall be
transferred, Ordering Company shall notify Supplier of
such transfer
and the transferee shall have agreed in writing (a copy
of which will
be provided to Supplier at its request) to keep such
Licensed Material
in confidence and to corresponding conditions
respecting use of
Licensed Materials as those imposed on Ordering Company;
and
(iv) Within the country in which
the Licensed
Material was originally deployed, the transferee shall
have the same
right to Licensed Material warranty or
Licensed Material maintenance for such Software as
the transferor,
provided the transferee continues to pay the fees, if
any, associated
with such Software or Software maintenance.
9.19 SOFTWARE MAINTENANCE SERVICE. Unless otherwise agreed by
Supplier in writing, maintenance Service for Software shall only be available
for (a) the version/generic that is current at the time that such Service is
ordered, (b) the immediately preceding version/generic, and (c) a
version/generic for which the term of warranty is still in effect. Ordering
Company will be notified in writing six (6) months in advance of maintenance
Service discontinuance for version/generics prior to the preceding
version/generic.
9.20 NOTIFICATION OF DISCONTINUED AVAILABILITY OF SOFTWARE.
Supplier shall notify Ordering Company at least one (1) year in advance of
discontinued availability of the last standard Software generic. For a minimum
of two (2) years after discontinued availability, Supplier will make available
to Ordering Company, Software Support Service or other mutually agreed upon
arrangements which afford Ordering Company reasonable continued use of the
Software. If Supplier refuses to provide Software Support Service beyond the
minimum two (2) year period, Supplier shall grant to Ordering Company a license
to use the Software Source Code under terms and conditions to be negotiated at
that time.
ARTICLE X
ENGINEERING, INSTALLATION, MAINTENANCE
AND OTHER MISCELLANEOUS SERVICES
10.1 GENERAL. The provisions of this Article X shall be
applicable to the furnishing by Supplier of Services other than Services
furnished pursuant to any other Article of this Agreement. Such services
include, but are not limited to (a) Engineering Services such as preparation of
equipment Specifications, preparation and updating of office records, and
preparation of a summary of material not specifically itemized in the Order (b)
Installation Services such as installation, equipment removal, and cable mining
(c) Maintenance Services, and (d) other Miscellaneous Services.
10.2 WARRANTY FOR SERVICES OTHER THAN MAINTENANCE SERVICES.
(a) Supplier warrants to Ordering Company that Services will be performed in a
professional manner and in accordance with Supplier's Specifications or those
referenced in the Order and with accepted practices in the community in which
such Services are performed, using material free from defects except where such
material is provided by Ordering Company. If the Services prove to be not so
performed and if Ordering Company notifies Supplier, with respect to
Engineering, Installation, or other Miscellaneous Services, within a six (6)
month period commencing on the date of completion of the Service, as identified
in writing by Supplier, Supplier, at its option, either will correct the defect
or nonconforming Service for which Supplier is responsible or render a full or
prorated refund or credit based on the original charge for the Services. After
the
corrective action, Ordering Company shall have the right to inspect and accept
the corrective work done..
(b) Where Supplier performs Engineering or Installation
Services as part of a combined engineering, furnishing, and installation Order,
the six (6) month period referenced above shall commence on the date of Ordering
Company's Acceptance of Installation Service.
(c) THE FOREGOING SERVICES WARRANTIES ARE
EXCLUSIVE AND ARE IN
LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT
NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. EXCEPT FOR
(a) TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY FOR WHICH
SUPPLIER IS HELD
LIABLE AND (b) THE REMEDY PROVIDED IN SECTION 5.1(e),
ORDERING COMPANIES'
REMEDIES, ORDERING COMPANY'S SOLE AND EXCLUSIVE REMEDY SHALL
BE SUPPLIER'S
OBLIGATION TO MAKE CORRECTIONS OR GIVE A CREDIT OR REFUND AS SET
FORTH ABOVE IN
THIS WARRANTY.
A. ENGINEERING SERVICES
10.3 ORDERING. Engineering Services may be
ordered separately
or in combination with Installation Services.
10.4 STANDARDS FOR ENGINEERING SERVICES.
Supplier agrees to
perform Engineering Services in accordance with the engineering
Standards
provided by and/or approved by Ordering Company.
10.5 STANDARDS FOR CENTRAL OFFICE RECORD
SERVICES. (a)
Supplier agrees to perform central office records services in
accordance with
central office records standards provided and/or approved by
Ordering Company.
(b) Ordering Company will provide Computer Aided Drafting
(CAD) specifications, CAD drafting tools, standard drawing files and other
conventions, in order that all completed CAD drawings will comply with Ordering
Company's standards. Title to CAD specifications, tools, drawing files, and
other data supplied to Supplier by Ordering Company shall remain in Ordering
Company at all times both before and after the Work is done.
(c) Supplier shall be responsible for loss or damage to CAD
tools, drawing files, models, blueprints, and other materials in Supplier's
possession under this Agreement belonging to Ordering Company, and shall, if
requested, furnish Ordering Company with acceptable certificates of insurance
covering this risk.
(d) All project and/or Order specific CAD drawings,
specifications and engineering calculations shall be forwarded to Ordering
Company and become Ordering
Company's exclusive property prior to final payment by Ordering Company on this
Agreement or an Order, unless otherwise agreed in writing by Ordering Company's
representative.
10.6 ENGINEERING INTELLECTUAL PROPERTY. All engineering
service outputs and final products, including but not limited to equipment
Specifications, office records, and material summaries, shall be the sole
property of Ordering Company. All tools, reference material, and proprietary
information used by Engineering Services to create or produce these outputs or
documents shall remain the sole property of Supplier.
B. INSTALLATION SERVICES
10.7 CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED
ON ORDERING COMPANY'S SITE. (a) ITEMS PROVIDED BY ORDERING COMPANY. Ordering
Company will be responsible for furnishing the following items (as required by
the conditions of the particular installation or other on-site Service,
hereinafter collectively referred to as the "Service") at no charge to Supplier
and these items will not be included in Supplier's price for the Services.
Should Supplier incur expense, subject to Ordering Company's preapproval, as a
result of Ordering Company's failure to provide any of these items, billing in
addition to the contract price will be rendered to and paid by Ordering Company.
In addition, if Ordering Company's failure to provide any of these items results
in delaying Supplier's performance, the affected Completion Date may be
extended.
(i) ACCESS TO BUILDING AND WORK
SITE - Allow
employees of Supplier and its subcontractors
controlled access to
premises and facilities at prearranged hours during
the scheduled
Service or at such other times as are reasonably requested by Supplier.
The parties shall endeavor, to the extent practical,
to agree on a
building and work site access schedule prior to the
start of work.
Ordering Company shall obtain for Supplier's and its
subcontractors'
employees any necessary identification and clearance
credentials to
enable Supplier and its subcontractors to have access to
the work site.
(ii) GENERAL BUILDING CONDITIONS -
Take such action
as may be necessary to insure that the premises will
be dry and free
from dust and Hazardous Materials, including but
not limited to
asbestos, and in such condition as not to be injurious to
Supplier's or
its subcontractors' employees or to the Products to be
installed. Prior
to commencement of the Services and during the
performance of the
Services, Ordering Company shall, if requested by
Supplier, provide
Supplier with sufficient data to assist Supplier in
evaluating the
environmental conditions at the work site (including
the presence of
Hazardous Materials). Ordering Company is responsible
for removing and
disposing of the Hazardous Materials, including but
not limited to
asbestos, prior to commencement of the Services.
(iii) REPAIRS TO BUILDINGS - Prior to
Service start
date, to the extent practical, make such alterations and
repairs as are
necessary for proper installation of Products.
(iv) OPENINGS IN BUILDINGS - Prior to
Service start
date, furnish suitable openings in buildings to allow
Products to be
placed in position, and provide necessary openings and
ducts for cable
and conductors in floors and walls as designated
on engineering
drawings furnished by Supplier with input provided by
Ordering Company.
Supplier shall provide such drawings to Ordering Company
in sufficient
time to meet project service dates. Ordering Company
shall fireproof
(with steel covers) all paths throughout the building.
(v) ELECTRICAL CURRENT, HEAT,
LIGHT, AND WATER
Provide electrical current for charging storage
batteries and for any
other necessary purposes with suitable terminals where
work is to be
performed; provide temperature control and
general illumination
(regular and emergency) in rooms in which work is to
be performed or
Products stored, equivalent to that ordinarily
furnished for similar
purposes in a working office; provide exit lights;
provide water and
other necessary utilities for the proper execution of the
Services. At
new locations without existing utilities Supplier may
be requested in
writing, prior to start date, to provide
utilities, subject to
negotiations with Ordering Company.
(vi) BUILDING EVACUATION - Prior to
Services start
date, provide building evacuation plans in case of a
fire or other
emergency.
(vii) CEILING INSERTS - Provide
ceiling inserts as
required using Supplier's standard spacing
arrangement for ceiling
support equipment.
(viii) MATERIAL FURNISHED BY ORDERING
COMPANY - New
or used third party material furnished by Ordering
Company shall be in
such condition that it requires no repair and no
adjustment or test
effort in excess of that normal for new equipment.
Ordering Company
assumes all responsibility for the proper functioning of
such material.
Ordering Company shall also provide the necessary third
party Product
information and, where possible and permitted, access to
special third
party test equipment and tools, for Supplier to
properly install such
material.
(ix) TOILET FACILITIES AND EYEWASH
STATION - Provide
proper and easily accessible toilet facilities and
supplies, such as
towels and soap, in buildings in which Services are in
progress. Where
temporary facilities are required, Ordering Company
will provide
suitable, portable facilities including supplies
and custodial
Services. Provide emergency eyewash station in power
room near battery
stands.
(x) FLOOR SPACE AND STORAGE
FACILITIES - Supplier
will identify to Ordering Company its need for space to
store materials
and tools necessary for the work. If adequate space in
the building is
available, Ordering Company will license Supplier to
use such space
reasonably adjacent to the work site for storage of
material and tools
for near-term use. If such space is not available,
the parties will
negotiate other arrangements, such as trailers or
off-site warehouses,
to achieve the maximum practical
economies. To the extent feasible, Ordering
Company will permit
Supplier's personnel to use luncheon facilities in
the building and
will license Supplier to use administrative space
solely for the
purpose of the Work.
(xi) EASEMENTS, PERMITS, AND
RIGHTS-OF-WAY - Prior to
Services start date, provide all rights-of-way,
easements, licenses to
come upon land to perform the Services, permits and
authority for
installation of Products and other material;
permits for opening
sidewalks, streets, alleys, and highways; and
construction and building
permits.
(xii) WATCH SERVICE - Provide
normal security
necessary to prevent admission of unauthorized persons
to building and
other areas where Installation Services are performed
and to prevent
unauthorized removal of the Products and other materials.
Supplier will
inform Ordering Company as to which storage facilities at
the work site
Supplier will keep locked.
(xiii) USE OF AVAILABLE TESTING
EQUIPMENT - Ordering
Company shall make available to Supplier the
maintenance test
facilities which are imbedded in equipment to which the
Product being
installed will be connected or added, and, if available,
meters, test
sets, and other portable apparatus that is unique to the
Product being
installed. Supplier's use of such test equipment shall
not interfere
with Ordering Company's normal equipment maintenance
functions.
(xiv) ACCESS TO EXISTING PLANT -
Ordering Company
shall permit Supplier reasonable use of such portions
of the existing
plant or equipment as are necessary for the proper
completion of such
tests as require coordination with existing facilities.
Such use shall
not interfere with Ordering Company's normal maintenance
of equipment.
(xv) GROUNDS - Ordering Company shall
provide access
to suitable and isolated building ground as required
for Supplier's
standard grounding of equipment. Where installation is
outside or in a
building under construction, Ordering Company shall
also furnish
lightning protection ground.
(xvi) REQUIREMENTS FOR ORDERING
COMPANY DESIGNED
CIRCUITS Ordering Company shall furnish information
covering the proper
test and readjust requirements for apparatus and
requirements for
circuit performance associated with circuits
designed by Ordering
Company or standard circuits modified by Ordering Company's drawings.
(xvii) CLEARING EQUIPMENT FOR
MODIFICATIONS Ordering
Company shall remove, or transfer telecommunications
traffic on trunks
and sundry working equipment, and make other
arrangements required to
permit Supplier to modify existing equipment.
(xviii) BATTERY ROOM VENTILATION -
Ordering Company
shall provide the required ventilation for battery rooms
or areas.
(xix) HOUSE SERVICE PANEL - Ordering
Company shall
provide electric power from Ordering Company's
Service panel to
Supplier's power board and shall run all leads between
said Service
panel and power board.
(xx) THROUGH TESTS AND TRUNK TESTS -
Ordering Company
shall make required through tests and trunk tests to
other offices
after Supplier provides its notice of completion or
notice of advanced
turnover.
(b) ITEMS TO BE FURNISHED BY SUPPLIER. The
following items
will be furnished by Supplier (if required by the conditions of
the particular
Service) and the price thereof is included in Supplier's price for
Services:
(i) PROTECTION OF EQUIPMENT AND
BUILDINGS - Supplier
shall provide protection for Ordering Company's
equipment, network
integrity and buildings during the performance of the
Services and in
accordance with Supplier's standard practices.
Supplier shall make
every effort possible to prevent interruptions to network
integrity.
(ii) METHOD OF PROCEDURE - Supplier
shall prepare
detailed (MOP), as defined by Ordering Company before
starting work.
Ordering Company shall review the MOP and any requested
changes shall
be negotiated. Ordering Company shall give Supplier
written acceptance
of the MOP prior to start of the work.
(iii) POWER CONDUIT - Supplier shall
install power
conduit and wire as specified in Ordering Company's
specifications.
(iv) FRAME AND AISLE LIGHTING -
Supplier shall
install conduit, wire, fixtures, and other necessary
material for frame
and aisle lighting as specified in Ordering Company's
specification.
(v) TEMPORARY DAILY CLOSING &
FIREPROOFING - Supplier
shall provide temporary daily closing for all occupied
buildings, and
fireproof all openings that Supplier makes in any
occupied building in
the course of providing the Services.
(vi) RESTORATION - Where it is
necessary in the
performance of the Services to open sidewalks,
driveways, curbing,
alleys, streets, or other property, Supplier shall
restore said
property to at least its former condition.
(vii) TOOLS AND EQUIPMENT -
Unless otherwise
specifically provided in this Agreement, Supplier
shall provide all
labor, tools and equipment (the "tools") for
performance of this
Agreement. Should Supplier actually use any tools
provided by Ordering
Company, Supplier acknowledges that Supplier accepts the
tools "as is,
where is". Supplier shall not, however, be
responsible for
consequential damages in the nature
of lost revenues, profits, or savings arising
from Supplier's
non-negligent use of a defective tool. Supplier
acknowledges that
Ordering Company has no responsibility for the
condition or state of
repair of the tools and Supplier shall have risk of loss
and damage to
such tools. Supplier agrees not to remove the tools from
the work site
and to return the tools to Ordering Company upon
completion of use, or
at such earlier time as Ordering Company may
request, in the same
condition as when received by Supplier, reasonable
wear and tear
excepted.
(viii) CLEAN UP - Supplier at all
times, and at its
expense, shall keep the premise free from
accumulation of waste
materials or rubbish caused by Supplier's operation. Upon
completion of
the Work, Supplier shall, at its expense, as promptly
as practical,
remove from the premises all of Supplier's
implements, equipment,
tools, machines, surplus, and waste materials and
debris. If Supplier
fails to clean up as provided herein, Ordering Company
may do so and
charge the cost thereof to Supplier or deduct same
from Ordering
Company's payment to Supplier.
(ix) SENSITIVE EQUIPMENT - Supplier
will consider and
treat all Ordering Company equipment as sensitive
equipment at the work
site (e.g., equipment sensitive to static electricity or
light).
(x) HAZARDOUS MATERIALS CLEANUP - At
the conclusion
of the Services, Supplier shall be responsible for
the cleanup,
removal, and proper disposal of all Hazardous Materials
introduced by
Supplier or its subcontractors to Ordering Company's premises.
(xi) The following items may be
furnished by Supplier
if requested by Ordering Company. Prices
associated with these
activities will be subject to negotiations and no such
activities will
be furnished without prior written consent of Ordering
Company:
(A) READJUSTING APPARATUS -
Supplier may
provide readjustment (in excess of that normally
required on new
apparatus) of apparatus associated with relocated or
rewired circuits.
(B) RERUNNING
CROSS-CONNECTIONS - Supplier
may rerun permanent cross-connections in accordance
with revised
cross-connection lists furnished by Ordering Company's
cross-connection
list.
(C) HANDLING, PACKING,
TRANSPORTATION, AND
DISPOSITION OF REMOVED AND SURPLUS ORDERING COMPANY
EQUIPMENT Supplier
may pack, transport, and dispose of surplus and
removed Ordering
Company equipment as agreed by the parties.
(D) PREMIUM TIME ALLOWANCES
AND NIGHT SHIFT
BONUSES - Supplier may have its Services personnel
work premium time
and night shifts to the extent that Supplier may
deem such to be
necessary to effect the required coordination of
installing and testing
operations or other Services because of
Ordering Company's
requirements.
(E) EMERGENCY LIGHTING SYSTEM
- - Supplier may
provide new emergency lighting system (other than the
original ceiling
mounted stumble lighting) to satisfy illumination and
safety needs of
Products of certain height.
10.8 ACCEPTANCE OF INSTALLATION. (a) At reasonable times
during the course of Supplier's installation, Ordering Company, at its request
may, or upon Supplier's request shall, inspect completed portions of such
installation. Upon Supplier's further request, and upon sufficient notice to
Ordering Company, Ordering Company shall observe Supplier's testing of the
Product being installed to determine that such testing and the test results are
in accordance with Supplier's Acceptance standards or Acceptance procedures. The
job shall be considered complete and ready for Acceptance by Ordering Company
when the Product has been installed and tested by Supplier in accordance with
its standard procedures, and Supplier represents such Product to be in working
order. Upon completion of the installation, Supplier will submit to Ordering
Company a written notice of completion or, if Ordering Company has elected
advance-turnover of subsystems, a written notice of completion of
advance-turnover.
(b) Ordering Company shall promptly make its final inspection
of substantial conformance with Supplier's specifications and do everything
necessary to expedite Acceptance of the job. Supplier will promptly correct any
defects for which it is responsible. The job will be considered as fully
accepted unless Supplier receives written notification to the contrary within
thirty (30) days after submitting the notice of completion.
(c) Acceptance shall be effective if executed in writing only
by an individual designated by Ordering Company in writing prior to installation
start date.
C. MAINTENANCE SERVICES
10.9 GENERAL SERVICE DESCRIPTION. Maintenance
Services for
Products and Software include, but are not limited to, fixed-term
Service and
time-and-material Service.
(a) Fixed-term Maintenance Service consists of procedures, as
determined by Supplier for particular Products and Software and for fixed
periods, to keep Products and Software operating materially in accordance with
their specifications. Such Service includes diagnostic Service using on-site or
remote techniques, as appropriate, to analyze a problem and prescribe remedial
action, and a mandatory escalation procedure to provide successively higher
levels of expertise. Fixed-term Maintenance Service will be rendered during the
Service hours selected by Ordering Company in accordance with the Level of
Service Specified in an Order
from options offered by Supplier. At the time a Maintenance
Service agreement is
established, Service Level Options will be mutually agreed to by
parties.
(b) Each Order shall be for a minimum of one (1) year and
shall commence on the date set forth in the Order. Supplier will provide written
notification to Ordering Company ninety (90) days prior to Order expiration, and
Ordering Company shall notify Supplier sixty (60) days prior to expiration date
of their intention to renew an Order for a period of time at prices to be
negotiated.
(c) Time-and-material Service includes, on a call-by-call
basis and on the basis of Supplier service personnel availability, technical
assistance using on-site or remote techniques, as appropriate, to analyze a
problem, prescribe remedial action and, if ordered, make necessary repairs.
(i) TYPES OF SUPPORT SERVICES. The
following Support
Services may be supplied to Ordering Company in
accordance with the
Maintenance Level of Service
ordered.
(A) CALL RECEIPT AND ROUTING -
Supplier will
provide a call receipt and routing function for
use by Ordering
Company. Ordering Company may access twenty-four (24)
hour a day, seven
(7) day a week telephone support for all Severity Level
problems with
the dial-in number being specified in the
Maintenance Service
Agreement. Requests may be made by electronic means as
specified in the
Maintenance Service Agreement, and with the mutual
acceptance of
Ordering Company and Supplier. Supplier will maintain
an entitlement
database to determine Ordering Company entitlements
(i.e., Service
Level) and how the call should be routed. Supplier will
work problems
outside the ARM coverage period only at Ordering
Company's expressed
request and Ordering Company will be billed at
Supplier's time and material rates.
(B) ASSISTANCE REQUEST
DATABASE ACCESS -
Pursuant to a fixed-term Maintenance Order and subject to
availability,
Ordering Company will be given access to automated
trouble reporting
tools. Customized trouble reporting features are
fee-based.
(C) CONSULTATIVE SUPPORT -
Remote telephone
services include delivering technical assistance and
advice for service
ARs reported by Ordering Company.
(D) THIRD PARTY SOFTWARE
SUPPORT - If a
condition is caused by the Third Party Software covered
in the Order,
Supplier shall be responsible for diagnosing and
resolving Third Party
Software defects.
(E) DIAGNOSTIC SUPPORT - Supplier
shall support
Ordering Company in analyzing Ordering Company
problems, including
isolation of defects to one of the following areas:
(1) Problems arising as a
result of Products
or their associated materials or documentation; and
(2) Other problems not
directly related to
Products, such as Ordering Company operations
problems, data base
problems, as well as any other interfacing system
problems.
(F) WORKING LOCATION - Supplier's
working location is
remote from Product site. At Ordering Company's request,
and as agreed
to by Supplier, Supplier will provide on-site assistance
in resolving a
problem. Such assistance will be billed at a minimum of
eight (8) hours
a day at the then current Supplier Time and
Material (T&M) rate.
Reasonable travel and living expenses incurred by
Supplier will also be
billed.
(G) SEVERITY LEVEL AND
PRIORITIZATION - Supplier
shall perform Problem Resolution Management in
accordance with the
Severity Level condition identified by Ordering Company.
Severity Level
Definitions are further defined in Exhibit 10-1. The
priority for
problem resolution will be based on the Severity Level
of outstanding
reported conditions. Severity Level One (1) conditions
will receive top
priority support. In the event that Ordering Company's
notification of
a Severity Level One causes Supplier to redirect its
efforts being
expended on a lower Severity Level condition,
Supplier shall notify
Ordering Company that there will be a delay in
correcting the lower
Severity Level condition.
(H) PROBLEM MANAGEMENT - Supplier
shall perform
procedures and actions upon written or oral request of
Ordering Company
to investigate and develop the resolution of a reported
condition in a
manner that provides Ordering Company a single
interface. This service
is performed only for Products covered under the
Maintenance Service
Order.
(I) MANAGEMENT NOTIFICATION -
Supplier will observe
the following escalation procedures:
(1) SEVERITY LEVEL ONE - In
the event of a
Severity Level One condition that is still unrestored
four (4) hours
after the condition is reported, Supplier will
notify Supplier's
supervisory management or next level of expertise of
the unrestored
condition. If the condition is still unrestored within
eight (8) hours
after the condition is reported, the next higher
level of Supplier
supervisory management or level of expertise will be
notified of the
unresolved condition. Once the highest level of
expertise is reached,
no further escalation will occur.
(2) SEVERITY LEVEL TWO - In
the event of a
Severity Level Two condition that is still unrestored
twelve (12) hours
after the condition is reported, Supplier will
notify Supplier's
supervisory management of the unrestored condition.
(J) SERVICE PERFORMANCE REPORTS (SPR) -
Supplier will
provide quarterly reports of Supplier's
performance against the
objectives stated in this Article 10.
(K) ORDERING COMPANY NOTIFICATION
BULLETINS Supplier
will provide Ordering Company Notification Bulletins to Ordering
Company on an as needed basis.
(L) ON-SITE ASSISTANCE - At
Ordering Company's
request and as agreed to by Supplier, a Supplier's
engineer may be
dispatched to Ordering Company's site for resolution of
a problem. If
the problem is not caused by a Designated Processor
covered by this
Agreement, On-Site Assistance will be billed at
minimum of eight (8)
hours a day at the then current Supplier time and
material (T&M) rate.
Reasonable travel and living expenses incurred
by Supplier as
referenced in Section 3.1(g), PRICES, will also be billed.
(ii) PERFORMANCE METRICS & OBJECTIVES. (A)
The Performance
Metrics described in this Section shall apply to
Products and Licensed
Software covered under the Preferred and Standard
Service Levels as
described in Section 10.9(c)(ii)(E) below. The
problem must be
reproducible at either Supplier's location or on
Ordering Company's
system verifiable by Supplier. The Severity Level of any
problem shall
be determined by Ordering Company; however, if
during resolution
Supplier determines that the Severity Level of the
problem claimed by
Ordering Company to be inaccurate, the Severity Level may
be changed by
Supplier upon mutual agreement with Ordering Company.
Ordering Company
requests which do not go through Supplier's Call Receipt
function will
be excluded from the Performance Metrics.
(B) Initial Response. During the term
of a fixed-term
Maintenance Service Agreement, and upon expiration
of any product
warranty, Supplier agrees to respond to Ordering
Company's request for
Support Service called in through Supplier's Call
Receipt function as
described in the table in Section 10.9 (c) (ii) (E),
GENERAL SERVICE
DESCRIPTION, within sixty (60) minutes, twenty-four
(24) hours a day,
seven (7) days a week, for all Severity Levels as
reported in the
assistance request database. Response time will be
validated through
the use of the Service Performance Report (SPR).
Ordering Company
requests which do not go through Supplier's Call Receipt
function will
be excluded from the Performance Metrics.
(C) Service Restoration for Service
Levels One and
Two shall be mutually agreed to by Ordering Company and
Supplier, and
documented in the
Maintenance Service Agreement. Restoral time will be
validated through
the use of the Service Performance Report (SPR).
(D) Resolution of Defect and Service
Severity Levels
One through Four shall be mutually agreed to by
Ordering Company and
Supplier, and documented in the Maintenance Service Agreement.
Resolution times will be validated through the use
of the Service
Performance Report (SPR).
(E) The following table represents
the Performance
Objectives for the Metrics listed in (B), (C), (D) above.
- -------------------------------------------------------------------------------------------------
COMMITMENTS
METRIC OBJECTIVE
PREFERRED STANDARD
- -------------------------------------------------------------------------------------------------
Initial Response % 100%
95% 75%
- -------------------------------------------------------------------------------------------------
Restore Severity Level 1 AR 100%
95% 75%
- -------------------------------------------------------------------------------------------------
Restore Severity Level 2 AR 100%
95% 75%
- -------------------------------------------------------------------------------------------------
Resolve Service AR 100%
95% 75%
- -------------------------------------------------------------------------------------------------
Resolve Defect AR 100%
95% 75%
- -------------------------------------------------------------------------------------------------
In addition, for 4ESS switch and 5ESS switch, the Switching Software Support
Plan (SSP), defines how the level of support changes with time upon the
introduction of new base releases. Exhibit 10-2 further explains the support
service that will be offered during each of the life cycle phases.
10.10 ELIGIBILITY FOR MAINTENANCE SERVICE. (a) Products and
Software furnished and installed by Supplier are eligible for Maintenance
Service without initial evaluation by Supplier provided the Service commences
not later than the end of the Warranty Period. Unless otherwise agreed by
Supplier in writing, Maintenance Service for Software shall only be available
for the generic that is current at the time that such Service is ordered and the
immediately preceding generic, as well as a generic where the term of warranty
is still in effect.
(b) In all other situations, the Products and Software shall
not be eligible for Maintenance Service until Supplier, at its option, has made
an initial evaluation to determine whether modifications are required to make
the Product or Software eligible. If, in Supplier's judgment, modifications are
required for this purpose, Supplier will provide a written estimate based on
standard rates to Ordering Company for making such modifications. Upon Ordering
Company's written Acceptance, Ordering Company will be billed at Supplier's then
standard rate for such evaluation and any such modifications furnished by
Supplier. Software will not be eligible for Maintenance Service unless Supplier
determines that the Software is in good working order in accordance with its
Specifications and can be maintained in such condition.
10.11 ORDERS FOR MAINTENANCE SERVICES. Ordering
Company shall
place Orders for Maintenance Services, indicating the Level of
Service to be
provided for each Product upon commencement of the Order. The
Level of Service
chosen shall remain in effect without
change for the contract period covered by the Order. All
installations of each
Product and each release of Software must be served at the
same Level of
Service.
10.12 PRICES. Sixty (60) days prior to the expiration of any
fixed-term Service Order, Supplier will, at Ordering Company's request, submit a
price for the renewal of the Service. Charges for time-and-material Maintenance
Service shall be determined at Supplier's applicable time and material rates in
effect at the time an Order for such Service is accepted and will be based on
the total work-hours (which includes travel time) expended on the job, and
actual travel expense. Such charges shall be based on a minimum number of hours.
10.13 PERIODS OF MAINTENANCE SERVICE.
Maintenance Service will
be provided in accordance with the Level of Service specified in
an Order.
10.14 MAINTENANCE SERVICE EXCLUSIONS. (a) Unless
expressly
agreed by Supplier, Maintenance Services to be provided under this
Article do
not include:
(i) Performing preventive
maintenance;
(ii) Making corrections to
user-defined reports;
(iii) Making Specification changes or
performing
Services connected with relocation of the Product;
(iv) Service which is impractical
for Supplier to
render because of changes not authorized by Supplier in
the Designated
Product processor, hardware configuration, Supplier's
Product or the
Product environment in which Supplier's Product operates;
and
(v) Modification or replacement of
Product, repair of
damage, or increase in Service time caused by:
(A) Failure to continually
provide a
suitable operational environment with all facilities
prescribed by the
applicable document including, but not limited to,
the failure to
provide, or the failure of, adequate
electrical power, air
conditioning, or humidity control;
(B) The use of the Product in
a manner not
in accordance with its Specifications, operating
instruction or
license-to-use;
(C) Accident; disaster, which
shall include,
but not be limited to, fire, flood, earthquake,
water, wind and
lightning; transportation; neglect or misuse; pest
damage; or power
failures or surges from sources external to the Product;
(D) Modifications,
maintenance, or repair
performed by a party other than Supplier;
(E) The conversion from one
Supplier
Software release to Supplier's subsequent Software
Release, or the
failure of Ordering Company to apply
previously applicable
modifications and corrections offered by Supplier;
(F) Attachment of unspecified
or
non-approved products to the Product, including
updates from
manufacturers of third party Software and Software
not licensed by
Supplier, or Designated Processors that have not
been certified by
Supplier, or failure of a processor or other equipment
or software not
maintained by Supplier, or failure of removable or
rotating storage
media.
(vi) Problem Management, as follows:
(A) Database Problems - If the
condition is
mutually determined to be the result of corruption of
the Software
Product data base, and such corruption is not the direct
result of the
Product, the condition will be referred back to
Ordering Company for
resolution. At Ordering Company's request, and at
Supplier's option,
Supplier may prepare a proposal for billable
corrective action to
correct Ordering Company's data base. However, if
corruption is the
result of, or caused by another of Supplier's Products
or Services,
Supplier shall initiate Problem Management regardless
of whether such
Software Product is covered under an Order.
(B) Hardware/Firmware Problems
- - When a
condition has been isolated to a problem in hardware or
Firmware not
covered under this Agreement, the condition will be
referred back to
Ordering Company for disposition under whatever
arrangements Ordering
Company may have for such hardware or Firmware.
(C) Other/Interfacing Problems
- - If the
condition is determined mutually to be caused by systems
other than the
Products covered under the existing Order, including,
but not limited
to, systems which interface with the Product, the
condition will be
referred to Ordering Company for corrective action
unless such other
system has been furnished by Supplier, in which case,
Supplier shall
initiate Problem Management. However, if a defect is
identified with
Software or Products covered by the Order which is
documented or
advertised to interface or work with other systems,
hardware, Products
or Software, Supplier shall conduct restoral and
correction procedures
as required for a defect and not as Problem Resolution
Management.
(D) Additional Services -
Additional
services, including but not limited to custom
feature development,
training, planning sessions, and other value-added
services, are not
included in the fees paid under this Agreement. Such
services may be
available through a Firm Price Quote (FPQ).
(b) At the request of Ordering Company, Supplier, at its
option, may perform Maintenance Services in the excluded conditions listed
above, at Supplier's rates and terms in effect at the time of such request.
10.15 ORDERING COMPANY RESPONSIBILITIES. In
addition to the
responsibilities specified in Section 6.4, ORDERING COMPANY'S
RESPONSIBILITIES,
Ordering Company shall be responsible for:
(a) PROVIDING INFORMATION TO CALL RECEIPT. (i)
Identification
of the condition and its isolation to a particular component of
the system
believed to be Supplier's responsibility.
(ii) Collection of
sufficient supporting
documentation from the Product or Software for
inclusion in the AR
database.
(iii) Determination that there are
no outstanding
conforming Software Product Updates that correct the
condition.
(iv) The calling Ordering Company
personnel shall
provide the following information, if applicable:
(A) Caller's name, Location,
and Company;
(B) Call-back Telephone Number;
(C) Remote Dial Access to
Ordering Company
System;
(D) System name and Location;
(E) Processor Location, Type,
and Serial
Number, if available;
(F) Nature of the Question or
Situation;
(G) The Calling Party's
Alternate Contact;
(H) Description and History of
Problem and
Efforts to Solve it by
Ordering Company;
(I) Contract number or
other proof of
coverage as requested by
Supplier.
(b) PROVIDING PROBLEM DIAGNOSTIC MATERIALS. If Ordering
Company reports a condition, Ordering Company will be responsible for providing
adequate support material to enable the diagnosis of the condition. Such support
materials may include, but not be limited to, a description of the
circumstances, a dump of system logs or buffers, a listing of data base
contents, and console printouts as required by Supplier.
(c) MAINTAINING THE PRODUCT OR SOFTWARE. (i)
Make no
modifications other than those approved by Supplier. This includes
updates from
manufacturers of third party Software or Designated Processors
that have not
been validated by Supplier.
(ii) Install all Software Product
Updates licensed by
Ordering Company under this Agreement within a reasonable
time, unless
Ordering Company has previously notified Supplier of
defects discovered
in the Software Product Update that make installation
unfeasible.
(iii) Follow all Supplier's and
relevant third party
Software or Designated Processor
manufacturer's applicable
installation, operation, administration, and maintenance
instructions.
(iv) Provide the proper environment
and electrical
and telecommunications connections as specified by
Supplier or the
relevant Designated Processor manufacturer.
(v) Maintain a back-up procedure
external to the
Designated Processors sufficient to reconstruct lost or
altered files,
data, or programs.
(vi) Install the appropriate Class A
Change Notices
in a timely fashion as mutually agreed to by the parties.
(d) ASSISTING SUPPLIER PERSONNEL PROVIDING
ON-SITE ASSISTANCE.
(i) Have an Ordering Company representative at the
equipment location
during any on-site Supplier service activity. Ordering
Company may be
subject to additional incurred time and material
charges if Ordering
Company fails to have a representative at the equipment
location at the
agreed time.
(ii) Provide adequate communication
facilities and
work space for Supplier.
(iii) Provide the maintenance test
facilities which
are embedded in equipment to which the product being
installed will be
connected or added, and maintenance documentation
sufficient for
maintenance of Products and Software not covered by this
Agreement that
interface with the Products and Software covered under
this Agreement.
(iv) Ensure that work done at the
site by Ordering
Company does not interfere with Supplier's
performance of On-Site
Assistance.
10.16 MAINTENANCE OF RELOCATED SOFTWARE. Software serviced
under this Agreement which is moved to another Designated Processor of Ordering
Company shall continue to be covered under this Agreement provided that Supplier
has received forty-five (45) days prior written notice of such relocation and,
if requested by Supplier, the parties have
renegotiated the objective response time (the time within which Supplier shall
use reasonable efforts to respond to Ordering Company maintenance requests)
selected by Ordering Company in an Order. If Ordering Company requests Supplier
to relocate Software, Ordering Company shall be charged for all such work
performed by Supplier at the negotiated rates.
10.17 SOFTWARE PRODUCT UPDATE SERVICES. Pursuant to a
fixed-term Software Maintenance Service Order, Supplier agrees to provide the
Software Product Update Services in accordance with the following terms and
conditions:
(a) DEFECT REPORTING - Any defects found in the Software
Product may be reported by calling Supplier's Call Receipt function. A tracking
report will be entered into the AR tracking database and referred to Supplier's
technical support.
(b) SOFTWARE PRODUCT UPDATES - Supplier will correct defects
in the Software Product and third party Software in accordance with the support
Services as described in Exhibit 10-1. Supplier will correct defects as follows:
(i) Supplier may periodically
provide Software
Product Updates to the Software to correct defect
conditions. If
requested by Ordering Company, Supplier shall provide
documentation to
enable Ordering Company to train Ordering Company's
personnel in the
operation of the Software modified by such release.
Supplier shall make
modifications to the documentation to clarify issues or
items not clear
to Ordering Company, as required.
(ii) Fees paid in accordance
with a Software
Maintenance Service Order cover only Product Updates
made generally
available during the term covered by an Order. After
expiration of the
term covered by an Order, Ordering Company is
entitled to the next
scheduled Product Update, which may contain
corrections for defects
reported during the term of an Order.
(iii) Due to the nature of Software,
Software Product
Updates require all previous Software Product
Updates for the
particular generic/software release as prerequisites.
It may not be
possible to install any Software Product Updates
unless all previous
Software Product Updates have been installed. These
previous Software
Product Updates are available for an additional fee.
(iv) If the condition is isolated
to the related
documentation for the Product or Software, the fix
will be given to
Ordering Company as part of the defect correction or
Product Update
procedure. Within two (2) years, a permanent fix will
be published in
the following release of the related documentation.
(c) NOTIFICATION OF CORRECTIONS - Supplier agrees to notify
Ordering Company of the availability of a resolution or work-around to a defect
reported by Ordering Company.
(d) ORDERING COMPANY CORRECTIVE MAINTENANCE RESPONSIBILITY
Ordering Company agrees to install the corrections or replacements provided
under this Agreement within a reasonable period of time. Ordering Company's
failure to install emergency fixes, work-arounds, patches or releases will cause
the Software Product to be considered non-standard until all such fixes are
installed, unless Ordering Company has previously notified Supplier of problems
with such emergency fixes, work- arounds, patches or releases.
10.18 MAINTENANCE SERVICES WARRANTY. Supplier warrants to
Ordering Company that Maintenance Services will be performed in a professional
manner and in accordance with Supplier's specifications or those referenced in
an Order and with accepted practices in the community in which such Services are
performed, using material free from defects except where such material is
provided by Ordering Company. If the Services prove to be not so performed and
if Ordering Company notifies Supplier, within the period of time equal to the
repaired Product warranty period (Exhibit 8-1), of the Product being repaired,
or six (6) months, whichever is less, commencing on the date of Acceptance of
the Service, as identified in writing by Supplier, Supplier, at it's option,
either will correct the defect or nonconforming Service for which Supplier is
responsible or render a full or prorated refund or credit based on the original
charge for the Services. After the corrective action, Ordering Company shall
have the right to Acceptance of the corrective work done.
D. MISCELLANEOUS SERVICES
10.19 TRAINING. If requested by Ordering Company, Supplier
will, at mutually agreed to prices: (a) provide instructors and the necessary
instructional material of Supplier's standard format to train Ordering Company's
personnel in the installation, planning and practices, operation, maintenance,
and repair of material furnished under this Agreement with such classes to be
conducted at intervals and locations agreed upon by Supplier and Ordering
Company; or, (b) license Ordering Company to reproduce Supplier's copyrighted
training modules or manuals, covering those areas of interest outlined in (a) of
this clause, sufficient in detail and format, to allow Ordering Company to
develop and conduct its own training program.
10.20 INSTALLATION/CUTOVER ASSISTANCE. In the event Supplier
is not installing the material, and if requested by Ordering Company, Supplier
agrees to make available at the installation site, at a negotiated price plus
travel and living expenses, a field engineer to render installation and cutover
assistance as required by Ordering Company.
ARTICLE XI
OUTSIDE PLANT SERVICES
11.1 PURPOSE AND SCOPE OF THIS ARTICLE. The
purpose of this
Article 11 is to set forth certain additional terms and conditions
relating to
the provision of Outside Plant
Services ("Services"). With respect to such Services, to the extent that any
provision set forth in this Article 11 conflicts with any provision set forth
elsewhere in this Agreement or in any project, Work Order or Field Order, this
Article 11 shall control. In the event of any conflict between this Article 11
and the Specifications, this Article 11 shall control. This Agreement shall not
affect or modify any agreements between the parties regarding Services currently
in the course of performance at the time of execution hereof; however, to the
extent that there are ambiguities or subject matters not addressed in such
agreements, this General Purchase Agreement shall apply.
11.2 WORK; SUPPLIER MATERIALS; PERMITS;
RAILROADS; SECURITY.
(a) Supplier will provide, construct or install or arrange to
have provided, constructed or installed those Products and Services as specified
in the Work Order or Supplemental Agreement (such Products and Services
hereinafter referred to as "Work"). Work shall not consist of the tasks and
responsibilities, including supply of materials or performance of services to be
provided or performed by Ordering Company , as set forth in Section 11.4,
ORDERING COMPANY OBLIGATIONS, below.
(b) For materials to be furnished by Supplier, Supplier shall
assume full responsibility for furnishing materials of the quality and quantity
specified, and shall be responsible for the timely delivery of all materials
subject to the reasonable availability of such materials. Such materials shall
conform to the respective Specifications and shall be subject to the warranty
limitations set forth in Section 11.12, PRODUCT RELOCATION OR MODIFICATION,
below. Prior to purchasing a substitute product, Supplier shall submit a formal
written request to the Engineer for Acceptance. If requested by Engineer,
Supplier shall furnish manufacturer's shop drawings and specifications.
(c) Supplier shall obtain all permits, licenses and approvals
at its own expense other than Ordering Company Permits (as defined in Section
11.4, ORDERING COMPANY OBLIGATIONS, below) that are required for Supplier's
construction operations, including waste disposal. Supplier shall comply with
the requirements of all permits, licenses and approvals and shall, at all times,
keep a copy of the permits, licenses and approvals at the Site.
(d) If Sunday, holiday, or night Work is specifically called
for as a permit requirement, Supplier shall provide adequate personnel,
equipment, and supervision for the proper performance and control of the Work in
accordance with such requirement. For such Work, Supplier shall be entitled to
extra payment, unless such Work was specifically contemplated in the applicable
Work Order and included in the Price.
(e) Where Work is to be performed on railroad property,
Supplier shall cooperate with the railroad personnel in performance of the Work
and shall satisfy railroad requirements.
(f) Supplier shall be responsible for all
security affecting
the performance of its Work.
11.3 ORDERING COMPANY FURNISHED MATERIALS. (a) All material
furnished by Ordering Company shall be delivered to Supplier at storeyards or
other locations to be mutually agreed upon; and, Supplier shall have charge of,
and be responsible for, all the material upon and after its delivery to Supplier
and shall return to Ordering Company all the material not required for the
completion of the Work, excluding waste.
(b) Supplier shall replace all Ordering
Company furnished
materials which are lost or damaged while in the custody
of Supplier.
Replacement materials shall be of a type and quality substantially equal to the
original materials, acceptable to the Engineer, and shall be obtained promptly
to prevent delay of the Work.
(c) Supplier shall rehandle and reload, if required, all
Ordering Company furnished materials and equipment which have been rejected by
Supplier.
(d) Ordering Company shall reimburse Supplier for all its
material shipping and handling expenses associated with:
(i) The return and/or replacement of defective
Ordering Company provided materials.
(ii) The return of excess materials
resulting from
the termination of an Order or a decrease in the
quantities of
materials required to complete a Work Order for
reasons other than
breach of contract or material non-performance by
Supplier.
(iii) The return of materials
provided by Ordering
Company in excess of those requested by Supplier
in the Bill of
Materials.
(e) Unless expressly stated to the contrary, the Price does
not include costs for any Ordering Company furnished material nor does it
include any Supplier charges for re-engineering, reinstallation, modification,
or repair Services to Ordering Company furnished material. New or used material
(if any) furnished by Ordering Company shall be in such condition that it
requires no repair and no adjustment or test effort in excess of that normal for
new material. Ordering Company assumes all responsibility for the proper
functioning of such material under normal conditions of use and/or when properly
installed. Ordering Company shall also provide the necessary information for
Supplier to properly install such material.
11.4 ORDERING COMPANY OBLIGATIONS. (a) On or before the start
date, at its own expense, Ordering Company will complete or provide, or arrange
for the completion or provision, of all of the following "Ordering Company
Obligations" set forth or referred to in this Section 11.4, ORDERING COMPANY
OBLIGATIONS. Ordering Company shall fulfill all obligations applicable to
Ordering Company-owned or -controlled buildings set forth in
Section 10.7, CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON
ORDERING COMPANY'S SITE, above, including but not limited to provision of
adequate Access to Building and Site, General Building Conditions, Repairs to
Buildings, Openings in Buildings, Floor Space and Storage Facilities and
Building Grounds. In addition to Ordering Company's obligations in the
Specifications, Ordering Company shall comply with the following:
(i) CONSULTANTS FOR SPECIAL SITES
- - Except as
otherwise provided in Section 11.18,
ARCHAEOLOGICAL SITES;
ENVIRONMENTAL PROTECTION, Ordering Company shall
provide, or, at
Ordering Company's option, shall authorize Supplier to
provide, any
consultants for special considerations, including, but
not limited to,
biologists to evaluate endangered species impacts or
archaeologists to
evaluate historically sensitive sites and qualified
experts to evaluate
environmentally hazardous conditions. In the event
that Supplier
provides such consultants, Ordering Company shall
reimburse Supplier
for such consultant costs on a Lump Sum Price basis; and
(ii) EASEMENTS, PERMITS, AND RIGHTS
OF WAY - Unless
otherwise required by applicable ordinances, codes or
statutes, any
necessary highway permits, construction permits,
easements, joint-use
or right of way grants shall be obtained and paid
for by Ordering
Company and Ordering Company shall file, or have filed,
the necessary
papers (collectively, the "Ordering Company Permits").
Ordering Company
Permits and corresponding permit applications, if
necessary, are
included in the Agreement Documents. If a permit is
unavailable at the
time of issue of the Agreement Documents, the permit
application only
will appear. Permits which are not available at the
time of issue of
the Agreement Documents will be provided to Supplier
prior to the Start
Date specified in each Work Order. When permits not
listed in the
Agreement Documents are obtained by Ordering Company,
a copy will be
provided to Supplier.
(iii) Railroad flagmen and/or
inspectors required to
be on the Site as a condition of an easement permit or
right of way or
other railroad requirement, will be provided by Ordering
Company at no
cost to Supplier.
11.5 WORK ORDERS; CHANGES. (a) Ordering Company shall submit
Work Orders to Supplier utilizing Ordering Company's form. Each Work Order and
Field Order shall contain or refer to a document containing the information
necessary for Supplier to fulfill the Work Order, including, but not limited to,
the information called for by Section 2.1, ORDERS, above, a reference to this
Agreement, Special Conditions, a Start Date, Completion Date and a Completion
Schedule. If such work items have been mutually agreed upon in a writing signed
by the parties (e.g., a Supplemental Agreement or a previously issued Work
Order), then Supplier shall proceed to fulfill the Work Order (i.e., the Work
Order shall function as a notice by Ordering Company for Supplier to proceed
with the Work). If such items have not been agreed upon, Supplier may reject the
Work Order or propose changes to the Work Order. If the parties are unable to
agree, the Work Order shall be deemed abandoned.
(b) Each Work Order and Field Order shall be subject to the
terms and conditions of this Agreement which shall control over any conflicting
provisions in such Work Order.
(c) Changes by Ordering Company to an accepted Work Order
shall be treated as a separate Work Order unless the parties expressly agree
otherwise. In addition, subject to Section 11.18, ARCHAEOLOGICAL SITES;
ENVIRONMENTAL PROTECTION, Supplier may identify additional changes to the Work
which must be performed due to certain conditions, as set forth in Section 11.8,
LOCAL CONDITIONS; DIFFERING SITE CONDITIONS below. If any such change affects
Supplier's ability to meet its obligations under the original Work Order, any
Price or Completion Date quoted by Supplier with respect to such original Work
Order is subject to change. All such changes must be approved in writing by
authorized representatives of both parties using Ordering Company's Form.
(d) Minor changes may be made by means of a
Field Order.
11.6 PLANT PROTECTION; UNDERGROUND FACILITIES.
(a) Supplier
shall adhere to the applicable MOP with respect to Ordering
Company's
underground facilities.
(b) Ordering Company has made minimal efforts to identify
existing utilities by field surveys and utility records research. Existing
underground and aerial utilities within the construction limits of the Work are
indicated on the Drawings only to the extent information on such utilities has
been made available to, or discovered by, the Engineer in the performance of the
design work. Except to the extent that the information contains a material
misrepresentation of fact, the Engineer and Ordering Company expressly disclaim
all responsibility for the accuracy and completeness of the information
indicated. Supplier shall conduct its operations on the basis that underground
and aerial utilities may exist which are not indicated on the Drawings.
(c) Supplier shall be responsible for locating and
identifying, except for Ordering Company's facilities or structures, all
existing utilities or structures within the construction limits of Work and
elsewhere where Supplier's construction operations may subject the utilities or
structures to damage. This shall be done prior to the performance of the Work.
All information relative to the above shall be recorded and incorporated into
the records in a manner reasonably acceptable by the Engineer.
(d) For Ordering Company facilities or structures, Supplier
shall adhere to the "One Call" procedure, as set forth in the Specifications.
11.7 PROTECTION OF PUBLIC AND PUBLIC PROPERTY.
Subject to any
more stringent requirements of Section 11.18, ARCHAEOLOGICAL SITES;
ENVIRONMENTAL PROTECTION, and Section 6.20, COMPLIANCE WITH LAW:
(a) Supplier shall in the performance of the Work exercise
reasonable measures to minimize inconvenience to the public and shall use its
reasonable efforts to preserve and protect
all trees, shrubs, grass, or other vegetation on or adjacent to the right of way
or Site which do not unreasonably interfere with the Work. Unless otherwise
required by Ordering Company's Representative, Supplier shall restore all such
property which may be disturbed in the execution of its Work to its former
visible condition.
(b) In accordance with Supplier's standard procedures, all
pavement, surfacing, driveways, curbs, walks, buildings, utility poles, guy
wires, fences, and other surface structures affected by Supplier's Work,
together with all sod and shrubs in yards and parking areas, shall be
substantially restored to their original visible condition, whether within or
outside the easement. Supplier shall be responsible for (i) making reasonably
satisfactory and acceptable arrangements with the owner of, or the agency or
authority having jurisdiction over, the damaged property concerning its repair
or (ii) replacement, or payment of reasonable costs incurred in connection with
such damage caused by Supplier or its Subcontractors.
11.8 LOCAL CONDITIONS; DIFFERING SITE CONDITIONS. (a) Upon
execution of a Work Order, Supplier admits to being reasonably informed as to
the nature and locations of the Work set forth therein; provided, however, that
in all cases, except as otherwise provided in Section 11.18, ARCHAEOLOGICAL
SITES; ENVIRONMENTAL PROTECTION, Differing Site Conditions shall be the basis
for a Change Order and additional compensation as set forth below in this
Section 11.8.
(b) Delays, Additional Work, or extra costs may result from
Differing Site Conditions of which neither Ordering Company nor Supplier should
reasonably have had knowledge at the time of the effective date of the earlier
of the Supplemental Agreement, the Work Order and the Change Order. In such
case:
(i) Supplier shall, promptly and
before Differing
Site Conditions are disturbed, notify the Engineer in
writing by means
of the Ordering Company Change Order Form of such
conditions;
(ii) After receiving notice from
Supplier, the
Engineer shall promptly investigate the Differing Site
Conditions, and,
if in his reasonable judgment, such conditions
exist, the Ordering
Company Representative shall by means of a Change
Order make an
equitable adjustment to the Price and the Completion
Schedule, as
agreed by Supplier; and
(iii) No claim of Supplier for
an equitable
adjustment because of Differing Site Conditions shall be
allowed unless
written notice has been given as required.
11.9 OUTSIDE PLANT SERVICES SCHEDULING. Prior to
the
pre-construction meeting, Supplier shall submit a detailed Outside
Plant
Services Scheduling schedule as set forth in the Specifications.
The Engineer,
Supplier and Ordering Company Representative shall hold
weekly status meetings at mutually agreed upon times and
places. Additional
coordination between the parties will be held on an as needed
basis as set forth
in the Specifications.
11.10 INSPECTION AND CORRECTION OF DEFECTS; ACCEPTANCE. (a)
Ordering Company's Representative shall have free access to the Work performed
and materials furnished by Supplier under this Agreement for the purpose of
inspection thereof. Prior to the commencement of the Warranty Period (as defined
in Section 11.12, WARRANTY, below), Supplier shall upon receipt of written
request from Ordering Company's Representative, furnish sufficient labor and
facilities at Supplier's expense, to make an inspection of Work already
completed by uncovering and exposing the Work for inspection.
(b) If the inspection discloses that the Work reasonably
conforms to the applicable Specifications in all material respects, the cost to
Supplier of (i) uncovering and exposing the Work, and (ii) examining and
restoring of the Work shall be considered a Change Order and shall be paid for
by Ordering Company. In addition, if completion of the Work has been delayed
thereby, Supplier shall be granted a suitable extension of time and/or delay and
disruption compensation, as mutually determined by Ordering Company and
Supplier.
(c) If the inspection discloses that the Work does not conform
to the applicable Specifications in all material respects, Supplier shall not
have a basis for a Change Order and shall correct the Work at
its own expense.
The Completion Date shall not be extended because of any delay caused by such
non-conforming Work.
(d) If Ordering Company notifies Supplier of a defect or
non-conformance during the progress of the Work or prior to Final Acceptance or
Beneficial Occupancy, Supplier will schedule the repair or replacement of such
Work within two (2) work days after receipt of written notice.
(e) Supplier may submit to Ordering Company a notice of
completion, placing Ordering Company on notice that the Work is complete and
ready for inspection. Ordering Company shall inspect the Work promptly and in no
event later than seven (7) business days after receipt of such notice. In the
event that Ordering Company does not inspect the Work within such time period,
Final Acceptance shall be deemed to have occurred with respect to such Work. If
the inspection results in a Punch List, Final Acceptance shall occur when the
Punch List is complete to Ordering Company's reasonable satisfaction. Again,
Supplier may submit a notice of completion regarding the Punch List and the same
procedure set forth above shall apply (i.e., Ordering Company shall inspect the
Work no later than seven (7) business days after receipt of such notice and
Final Acceptance shall be deemed if Ordering Company fails to inspect within
that time).
11.11 SUPERVISION; CONTROL OF WORK. (a) Supplier
shall keep on
the Work site a competent Superintendent and any necessary
assistants and all of
them shall be reasonably satisfactory to Ordering Company's
Representative.
(b) Supplier shall have full control and direction (i) over
the mode and manner of doing the Work, subject to Sections 6.20, COMPLIANCE WITH
LAWS, and 11.18, ARCHAEOLOGICAL SITES; ENVIRONMENTAL PROTECTION, and MOPS and
(ii) of its personnel employed on or about the Work.
11.12 WARRANTY.
(a) FOR PRODUCTS. The Warranty for Products
is set forth in
Section 8.2, WARRANTY; the Warranty Period is set forth
in Exhibit 8-1,
provided , however, that the Warranty Period begins on
the earlier of
Final Acceptance of a completed Work Order or Beneficial
Occupancy.
(b) FOR SERVICES. The warranty shall begin on the earlier of
Final Acceptance of a completed Work Order or Beneficial Occupancy and shall
extend for one (1) year (the "Warranty Period"). Supplier agrees to perform Work
in a professional manner; using competent and responsible personnel trained as
required by the most stringent of accepted industry practice, Supplier practice,
Section 6.20 COMPLIANCE WITH LAWS, and Applicable EH&S Requirements (Section
11.18 (c)); and in accordance with the Specifications or other agreed upon
specifications and in accordance with accepted practices in the community in
which the Work is performed using material free from defects except where such
material is provided by Ordering Company. If Work provided by Supplier proves
not to have been so performed, and if Ordering Company notifies Supplier in
writing to that effect within the Warranty Period, then Supplier shall, at its
option, correct any defects or render a full pro-rated refund or credit based on
the original charges for the Work.
(c) If the refund or option is not chosen and if, during the
Warranty Period, Ordering Company notifies Supplier of a defect covered under
paragraphs (a) and (b) above, then Supplier shall commence to repair or replace
such Work within seven (7) days after receipt of written notice. Notwithstanding
the above, if the refund or credit option is not chosen and if Ordering Company
notifies Supplier that the defective or non-conforming Work is of a critical
nature for network protection or for safety reasons, Supplier shall commence to
repair or replace the Work within twenty-four (24) hours after receipt of
written notice.
(d) The warranties provided in this Section 11.12 do not cover
repair for damages, malfunctions or service failures caused by: (i) actions of
any personnel not employed, directly or indirectly, by Supplier; (ii) Ordering
Company's failure to follow Supplier's installation, maintenance or operation
instructions; or (iii) a condition of Force Majeure.
(e) THE WARRANTIES STATED IN THIS SECTION 11.12
ARE EXCLUSIVE
AND ARE IN LIEU OF ALL OTHER EXPRESSED OR IMPLIED WARRANTIES,
INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
EXCEPT FOR (a) TANGIBLE PROPERTY DAMAGE AND PERSONAL INJURY FOR
WHICH SUPPLIER
IS HELD LIABLE AND (b) THE REMEDY PROVIDED IN SECTION 5.1(e),
ORDERING
COMPANIES' REMEDIES, ORDERING COMPANY'S SOLE AND EXCLUSIVE REMEDY
SHALL BE
SUPPLIER'S OBLIGATION TO REPAIR, REPLACE, MAKE CORRECTIONS OR
REFUND AS SET
FORTH ABOVE IN THIS WARRANTY.
(f) PRODUCT RELOCATION OR MODIFICATION. Ordering Company shall
advise Supplier promptly of any change in location or modification to any
Product covered by warranty service under this Agreement. If such change, in
Supplier's opinion, creates a safety hazard or is likely to cause a malfunction,
Supplier may at Ordering Company's expense, correct the condition. If the
condition cannot be corrected to Supplier's reasonable satisfaction, Supplier
reserves the right to terminate without liability warranty service under this
Agreement for the products relocated and/or modified.
11.13 SAFETY; EMERGENCY. (a) Supplier shall be
responsible for
the safety of the Work it performs; provided, however, that
Supplier shall not
be responsible for any unsafe circumstance caused by Ordering
Company or Others.
(b) Whenever, in the reasonable opinion of Ordering Company or
the Engineer, Supplier has not taken sufficient precautions for the safety of
the public or the protection of the Work or adjacent structures or property, and
whenever, in the reasonable opinion of Ordering Company or the Engineer, an
emergency has arisen and immediate action is considered necessary, then Ordering
Company, with prior notice to Supplier, may provide suitable protection by
causing Work to be done and material to be furnished and placed. To the extent
that Supplier is responsible for such emergency, the reasonable out-of-pocket
cost of such Work and material shall be borne by Supplier, and if the same is
not paid on presentation of the bills therefor, such costs may be deducted from
amounts due or to become due Supplier. The performance of such emergency Work
shall not relieve Supplier to the extent of its responsibility for damage which
may occur. Ordering Company shall make a good faith effort to contact and
utilize the services of Supplier to correct the emergency protection problem
prior to retaining the services of another contractor.
11.14 ENGINEER'S DRAWINGS AND
SPECIFICATIONS. (a) Supplier
will be furnished a sufficient number of sets of Drawings
including revisions
thereto and sufficient copies of the Specifications without
charge. All Drawings
and Specifications shall be returned to the Engineer upon
completion of the
Work. Supplier may retain sufficient copies to perform
its Warranty
administration.
(b) The Drawings shall be signed by Ordering
Company's
Representative and by Supplier.
(c) Supplier shall conduct a normal and customary check of all
dimensions, elevations, and quantities indicated on the Drawings and lists
furnished by the Engineer. If Suppliers discovers in the course of its work,
major discrepancies between the Drawings and the conditions at the site, errors
or omissions in the Drawings, and in the layout as given by stakes, points, or
instructions, Supplier shall notify the Engineer. Supplier will not be allowed
to take
advantage of errors or omissions in the Drawings or other Agreement Documents.
Full instructions will be furnished by the Engineer should such error or
omission be discovered, and Supplier shall carry out such instructions as if
originally specified; provided, however, that in the event that such
instructions result in an increase in Supplier's costs or in a Construction
Delay (as defined in Section 11.20, CONSTRUCTION DELAY, below) in the Completion
Schedule, Supplier shall be entitled to reasonable compensation and, if
necessary, an extension in the Completion Schedule.
11.15 REFERENCE STANDARDS. Reference to the standards of any
technical society, organization, or association, or to codes of local or state
authorities, or AT&T EH&S Practices shall mean the latest standard, code,
Specification, or tentative standard adopted and published, unless specifically
stated otherwise. Since the Agreement will likely cover multiple years, except
as otherwise required by Section 6.20, COMPLIANCE WITH LAW, Supplier will be
given sufficient time to assess and comply with new standards, and to request
additional time and/or compensation for compliance.
11.16 RECORDS. Supplier shall maintain complete records
including, but not limited to all labor and equipment hours, material purchased,
and Work subcontracted to other parties. The records shall be maintained in
accordance with recognized commercial accounting practices and in such manner
that they may be readily audited. The records, including all supporting
documents, shall be available at all reasonable times for audit by Ordering
Company both during the contract period and for one year following the date of
final payment or until all disputes, if any, between Supplier and Ordering
Company have been finally resolved, whichever is later. Supplier shall also
maintain weekly sheets, showing all labor and equipment employed and material
received.
(a) Supplier shall maintain at the site where Work is being
performed or Supplier's local construction office a file of current copies of
all Drawings, Specifications, and other Agreement Documents and supplementary
data.
(b) Supplier shall create a timed and dated pictorial record
of the Site, including paths of ingress and egress, before and after Work is
performed for the purpose of precluding or settling claims.
11.17 UNFAVORABLE CONSTRUCTION CONDITIONS. (a) During periods
of unfavorable weather, wet or frozen grounds, or other unsuitable construction
conditions, Supplier shall confine its operations to Work which will not be
affected adversely thereby. No portion of the Work shall be constructed under
conditions which would adversely affect the quality or efficiency thereof,
unless special means or precautions are taken by Supplier to perform the Work in
a proper and satisfactory manner.
(b) If adverse weather conditions are encountered by Supplier
or its subcontractor(s) which are abnormal for the location and time of year for
which such claim is made, the construction schedule shall be extended by an
amount of time equal to the effect of
such adverse weather. If adverse weather is the basis of a claim by Supplier for
additional time, such claim shall be documented by Supplier and include data
substantiating that weather conditions were abnormal for the period of time in
question and Supplier could not have been reasonably anticipated such adverse
weather and that such weather conditions had an adverse effect on the
construction schedule.
11.18 ARCHAEOLOGICAL SITES; ENVIRONMENTAL
PROTECTION. (a)
Known archaeological, historical or cultural sites along the route
will be
indicated on the Drawings by the Engineer.
(b) If archaeological, historical or cultural artifacts are
encountered during construction anywhere along the route, construction at that
location shall stop and the Engineer shall be promptly notified. Supplier shall
not harm or disturb such artifacts until instructed by Ordering Company or
Engineer as to how to proceed. If an extended delay is anticipated, Supplier may
elect to move to another location of Work. Notwithstanding anything to the
contrary herein, Demobilization and Remobilization or construction delay due to
unanticipated archaeological findings shall be a basis for extra payment.
Ordering Company shall be responsible for obtaining any necessary permits in
order to continue Work in the affected area.
(c) Ordering Company shall provide Supplier with AT&T EH&S
Practices, including updates. At the end of each calendar year, Ordering Company
shall provide Supplier a list of all AT&T EH&S Practices still in effect. AT&T
EH&S Practices shall be deemed applicable to the Work under a Work Order only
when provided to Supplier at or prior to the date of the Work Order. Supplier
shall at its own expense comply with the most stringent of: applicable
governmental laws, regulations, ordinances, rules, codes, orders, guidances,
permits, approvals; applicable easement or license conditions; applicable
Supplier EH&S practices; and applicable AT&T EH&S Practices (collectively
"Applicable EH&S Requirements").
(d) Supplier shall be deemed the generator of all waste
associated with the Work and shall dispose of that waste at its own expense as
set forth in Section 11.18(c), ARCHAELOGICAL SITES; ENVIRONMENTAL PROTECTION,
above. "Waste" shall include without limitation all hazardous and non-hazardous
substances and materials associated with the Work which are intended to be
discarded, scrapped, or recycled. It shall be presumed that all substances and
materials associated with the Work that are not incorporated into the Work
(including without limitation damaged components or tools, leftovers,
containers, garbage, scrap, residues or byproducts), except for substances and
materials that Supplier or Ordering Company intend to use in their original form
in connection with similar work, are waste.
(e) In the event conditions are discovered or created at or
near the site of the Work which may require (i) investigation or remediation or
(ii) unforeseen measures to protect the environment, health or safety
(collectively "Adverse EH&S Conditions"), the party discovering the condition
shall immediately notify the other party. The party in the best position to do
so (or, if the parties are equally situated, Supplier) will then immediately
take reasonable
measures temporarily to contain or otherwise avoid exacerbation of or exposure
to the conditions. Unless Ordering Company affirmatively notifies Supplier
otherwise, Supplier shall also take such other actions as Applicable EH&S
Requirements prescribe.
(f) In the event Supplier's failure to comply with Section
11.18(c), ARCHAELOGICAL SITES; ENVIRONMENTAL PROTECTION, above or Supplier's
negligence or willful misconduct was a not insignificant cause of (i) the
Adverse EH&S Conditions or (ii) exacerbation of the Adverse EH&S Conditions,
Supplier shall indemnify and hold harmless Ordering Company and be responsible
for all costs associated with curing the Adverse EH&S Conditions. In all other
events Ordering Company shall indemnify and hold harmless Supplier from and be
responsible for all costs associated with curing the Adverse EH&S Conditions.
11.19 REPORTING DEFECTS. (a) If any part of Supplier's Work
depends, for its proper execution or results, upon the Work of any Others,
excepting Subcontractors, Supplier shall inspect and promptly report to Ordering
Company's Representative any defects in the Work that render it unsuitable for
the proper execution or results, and Supplier shall not proceed with that phase
of the Work until so authorized by Ordering Company's Representative. Ordering
Company may request and Supplier shall provide such reports in writing.
(b) Supplier shall be made aware of the delivery status of
Ordering Company furnished materials and of the progress of construction Work
being performed under separate contracts, in each case as informed by Ordering
Company pursuant to (c) below.
(c) Ordering Company will furnish information to Supplier
which may be available to it regarding the status of Ordering Company furnished
materials or construction Work being performed under separate
contracts.
11.20 CONSTRUCTION DELAY. (a) Supplier will
complete all Work
on or before the Completion Date unless either Ordering Company
agrees to extend
that Date or Supplier is entitled to an extension pursuant to this
Agreement.
(b) Ordering Company will perform all of its obligations,
including provision of labor and materials to be furnished by it in such a
manner so as not to delay the progress of the Work (such being a "Construction
Delay"), and in event of its failure to do so, thereby causing loss to Supplier
or as a result of one or more of the circumstances set forth in paragraph (c)
immediately below, Ordering Company agrees that it will compensate Supplier for
such loss and, if necessary, reschedule the Completion Date to a mutually agreed
upon date. Supplier agrees that if Supplier shall delay the progress of the Work
in breach of its obligations hereunder and such delay causes Ordering Company to
sustain a loss, then Supplier will reimburse Ordering Company for such loss,
subject to the limitation of Supplier's liability set forth in Article 5 of this
Agreement.
(c) Notwithstanding anything to the contrary in this
Agreement, among the causes of "Construction Delay" for which Supplier shall be
compensated and the Completion Date shall be rescheduled pursuant to paragraph
(b) immediately above, are the following:
(i) Lack of Ordering Company Permits;
(ii) Lack of Ordering Company furnished
material;
(iii) Work stoppage by landowner;
(iv) Work stoppage by permitting agency
even though
Supplier has met the requirements of the relevant permits;
(v) Railroad company denying access to the
right-of-way or rail due to railroad's operations which
regulate the
Work conditions;
(vi) Work stoppage by Ordering Company
to implement
new requirements, including changes to the Completion
Date or
Completion Schedule;
(vii) Waiting for the presence of the Ordering
Company Representative;
(viii) Defective or damaged Ordering Company
furnished material;
(ix) Special Service Precautions per the
Specifications; and
(x) Waiting for Engineer's written approval to
proceed due to the interference of other contractors.
(d) Delay time is payable by Ordering Company for Construction
Delay for the reasons set forth above, when Supplier is prevented from or
delayed in working on any contracted item that is available
to Supplier.
Construction Delay time will begin after Supplier has been denied access to the
Work or Ordering Company has delayed the Work for an accumulated time in excess
of one (1) hour during a given normal working day.
(e) The term "accumulated time" shall include discontinuous
amounts of time and shall be applied to an entire crew. For example, a
four-person crew that incurred a forty five (45) minute Construction Delay due
to a permit problem and then later in the same working day incurred an
additional Construction Delay for another reason, would begin Construction Delay
time for the crew after fifteen (15) minutes of the second delay. If a crew is
into Construction Delay time at the end of a Work day and is prevented from
working on any contracted item available the next Work day and the condition
that caused the Construction Delay still exists, then Construction Delay time
shall continue without the requirement that it be in excess of one hour for the
second day.
(f) If Supplier is forced to cease all or a portion of its
operations due to lack of right-of-way, by reason of injunction against Ordering
Company or other legal obstacles, or delay in Ordering Company-furnished
material deliveries, Ordering Company may request that Supplier move to another
site or to move off the project. At Ordering Company's request, Supplier shall
move from the portion of the project upon which he was previously engaged to
another point in the project designated by Ordering Company or to an Ordering
Company location completely off the project. Supplier shall at a later date
complete the Work left behind, when requested to do so by Ordering Company, and
such Work shall be done at prices specified in the Proposal plus Demobilization
and Remobilization.
11.21 NOTICE OF LABOR DISPUTES. Whenever Supplier has
knowledge that any labor dispute is delaying or threatens to delay the timely
performance of the Work, Supplier shall promptly give notice thereof to Ordering
Company. Supplier shall confirm the notice in writing within three (3) Work
days.
11.22 PERFORMANCE AND PAYMENT BOND. Ordering Company shall
have the right to require Supplier to furnish a bond for the full and faithful
performance of the Work and for the payment of all bills, debts and obligations
related to the Work. The bond shall be in such form, principal amount and with
such sureties as may be required by Ordering Company. Ordering Company shall
reimburse Supplier for the net premium on the bond upon receipt of the sureties'
bills to Supplier. Supplier agrees and represents that no amount for bond
premium is included in the contract price.
11.23 APPLICATION FOR PAYMENT; TERMS OF PAYMENT. (a) Supplier
shall render to Ordering Company Applications for Payment for an amount based
upon the quantities of Work in a Work Order which have been completed by
Supplier during the monthly invoicing period, unless billing is rendered sooner
pursuant to a written modification of this Section or for delay and disruption
compensation or Special Conditions accrued as provided for elsewhere in the
Agreement. Ordering Company shall promptly approve the Application for Payment
within ten (10) business days or notify Supplier of any disputed items in an
Application for Payment. If at the expiration of such ten business day period,
Supplier does not receive written approval or rejection from Ordering Company,
the Application for Payment shall be deemed approved.
(b) The method of measurement, basis of payment and conditions
under which payments for Special Conditions are made can be found in the
Specifications.
(c) For material furnished by Supplier, the same terms of
payment shall apply as the terms which apply for Services billed by Supplier.
For Material supplied by Ordering Company and ordered from Supplier pursuant to
another Article of this General Purchase Agreement (e.g., an Order for cable),
the terms of payment are set forth in such Article or elsewhere in this
Agreement.
11.24 LIENS. If as a result of any act
or omission of
Supplier, any lien is filed by a Subcontractor against
Ordering Company,
Supplier shall cause the same to be discharged of record within forty-five (45)
days after receipt of written notice thereof from Ordering Company.
ARTICLE XII
CONSULTING SERVICES
12.1 GENERAL. The provisions of this Article 12 shall be
applicable to the furnishing by Supplier to Ordering Company of Consulting
Services. Software development is not a Consulting Service governed by this
Article; it is governed by Article 9 of this Agreement.
12.2 STATEMENT OF WORK. (a) From time to time hereafter,
Ordering Company may authorize Supplier to render to Ordering Company Consulting
Services and related work (hereinafter "Work") by submitting an Order to
Supplier or by entering into a Supplemental Agreement with Supplier. All Work
conducted by Supplier in response to such an Order or Supplemental Agreement
shall be considered Work under this Article, and the terms and conditions hereof
shall govern. Supplier shall render all the Services specified in the request
within the time allowed therein and shall meet all interim deadlines set by the
parties.
(b) Supplier agrees that all information provided to Ordering
Company pursuant to this Agreement will be collected, compiled and provided to
Ordering Company in a lawful and ethical manner. Supplier shall not provide to
Ordering Company any information which has been provided to Supplier under the
terms of a written or oral non-disclosure confidentiality agreement. Such
Information includes, but is not limited to, proprietary, confidential, or trade
secret Information of a party that was obtained by Supplier during Supplier's
prior employment by such party. In the performance of this Agreement, Supplier
shall not at any time: (i) misrepresent itself or its status to any third party;
(ii) provide a false or deliberately misleading reason for inquiries or the
collection of Information; (iii) misstate the nature of its relationship with
Ordering Company; or (iv) use any element of fraud, dishonesty or criminal
conduct in connection with its performance under this Agreement and the
provisions of this Section 12.2.
12.3 OWNERSHIP OF INFORMATION. (a) Ordering
Company
acknowledges that Supplier expressly reserves and retains sole
ownership in its
trademarks and all intellectual property, including its
copyrighted materials
(report formats, creative materials, etc.) and unique inventing
and research
systems and methodologies as utilized in performing work. None of
the above may
be kept, copied or utilized by Ordering Company in any manner.
(b) Except as expressly set forth herein, nothing contained
herein shall be construed as conferring to either party by implication, estoppel
or otherwise any license or right under any patent, trademark, service mark,
trade dress, indicia of origin, copyright, mask work protection right, or any
other intellectual property right which is owned, controlled by or licensed to
either party.
(c) The parties' respective ownership interests, up to and
including one hundred percent (100%), in and rights to use information used or
produced by Supplier to perform Consulting Services hereunder, other than those
specified above, shall be determined on a case by case basis in each Order or
Supplemental Agreement pursuant to which Ordering Company purchases Consulting
Services from Supplier.
12.4 EQUIPMENT SUPPLIER. Ordering Company warrants that no
current corporate policy, would give rise to Supplier or any of its Affiliated
Companies being disqualified, as a result of this Agreement or the work
performed under it, from bidding upon or being awarded a contract to supply
telecommunications or computer equipment, Software, or related Services to
Ordering Company.
12.5 ORDERING COMPANY'S RESPONSIBILITY.
In addition to
Ordering Company's responsibilities specified in Section 6.4, ORDERING COMPANY'S
RESPONSIBILITY, Ordering Company shall, at no charge to Supplier, provide
Supplier with financial, operational and technical information, data, technical
support, personnel or assistance as may reasonably be required by Supplier to
fulfill its obligations under this Article.
12.6 WARRANTY. Supplier warrants to Ordering Company that
Services will be performed in a professional manner and in accordance with
Ordering Company's specifications or those referenced in the Order and shall be
in accordance with such requirements or restrictions as may be lawfully imposed
by governmental authority. If the Services prove to be not so performed and if
Ordering Company notifies Supplier within a thirty (30) day period, commencing
on the date of completion of the Service, at Ordering Company's option, Supplier
either will correct the nonconforming Service for which Supplier is responsible
or render a full or prorated refund or credit based on the original charge for
the Services.
ARTICLE XIII
PURPOSE AND ORGANIZATION OF PART III
13.1 PURPOSE AND SCOPE OF PART III. Part III sets forth the
specific additional terms and conditions pursuant to which the Business
Communications Systems unit of Supplier ("BCS") shall provide, and Ordering
Companies shall purchase or license, BCS Products, Licensed Materials (including
Software) and Services. The terms and conditions that shall govern BCS sales to
Ordering Companies shall be Part I and Part III of this Agreement, any
applicable Supplemental Agreement, the Pricing Agreement (LC3775D) or any other
governing agreement covering pricing, except that Sections 1.3 and 1.4 of the
Pricing Agreement shall govern in any event. With respect to BCS Products used
in conjunction with AT&T's Network, additional provisions may be negotiated on a
case-by-case basis and set forth in Supplemental Agreements or Orders.
13.2 ORGANIZATION OF PART III. Part III is
organized as
follows:
(a) Article 14 sets forth the additional terms
and conditions
governing BCS's provision of Products;
(b) Article 15 sets forth the additional terms
and conditions
governing BCS's licensing of Licensed Materials; and
(c) Article 16 sets forth the additional terms and conditions
governing BCS's provision of Maintenance, Installation and other Miscellaneous
Services.
13.3 ORDERS
(a) The term "Order" shall be defined as any Ordering Company
request to purchase Products, to receive a license to use Licensed Material or
to obtain Services. Such requests will be done on a BCS order form (e.g.,
Product Agreement, Service Agreement, Purchase/Service Agreement, Equipment
Supplement, Maintenance Supplement, or Change Order Form), Ordering Company's
Purchase Order Form or other mutually agreeable order form.
(b) Subject to Section 2.2, subsequent Orders for
modifications, additions or changes will become an integral part of this
Agreement when accepted by BCS.
(c) The Customer Contract Return Date is the date BCS must
receive from Ordering Company an executed Order. If this date is not met, BCS
may reschedule the Delivery Date and/or In-Service Date and BCS may, subject to
Ordering Company's consent, change the prices specified on the Order or
confirmation of such Order.
(d) When applicable for an Order, BCS and Ordering Company
will agree upon all dates and activities required to meet the scheduled Delivery
Date for Customer-installed Products, or the scheduled In-Service Date for
BCS-installed Products, and complete the Project Milestone and Responsibilities
document (a sample of which has been provided as Exhibit 13-1 of this Agreement,
which document shall be incorporated by reference into such Order under this
Agreement). The installation responsibilities of each party with respect to an
Order under this Agreement are described in Exhibit 13-2 of this Agreement,
which is incorporated into this Agreement.
(e) Subject to Section 2.2, Orders for modifications or
additions to the Products acquired hereunder placed after the Delivery Date or
In-Service Date (as applicable for said Product) will be governed by the terms
and conditions of this Agreement when the Order is accepted by BCS.
13.4 PRICE AND DISCOUNTS. Prices and discounts
for BCS's
Products, Licensed Materials and Services shall be as shown in the
AT&T-BCS
Pricing Agreement.
13.5 BILLING AND PAYMENT
(a) This section overrides any inconsistent provisions in Part
1 and covers how BCS will invoice Ordering Company.
(b) For Products that BCS installs, BCS will bill Ordering
Company for the Product and installation charges on the In-Service Date, except
as provided in Section 14.4(b).
(c) For Ordering Company-installed Products,
BCS will invoice
Ordering Company upon delivery.
(d) BCS will invoice recurring charges in
advance.
(e) Payment of invoices is due within thirty (30) days of the
invoice date. Restrictive endorsements or other statements on checks will not
apply.
(f) If Ordering Company does not generally pay in a timely
fashion, the parties agree to review the billing and payment processes to
improve such processes.
13.6 HAZARDOUS MATERIAL. Ordering Company is responsible for
removal of any hazardous material (e.g., asbestos) or correction of any
hazardous condition that affects BCS's performance of Services. Services will be
delayed until Ordering Company removes or corrects any such hazardous condition
with no penalty to BCS.
13.7 IDENTIFICATION CREDENTIALS. Ordering Company may, at its
discretion, require BCS's employees and subcontractors to exhibit identification
credentials, which Ordering Company may issue, in order to gain access to
Ordering Company's premises for the performance of the work. If for any reason,
any of BCS's employees or subcontractors are no longer performing work, BCS
shall immediately inform Ordering Company's Representative in the speediest
manner possible. Notification shall be followed by the prompt delivery to
Ordering Company's Representative of the identification credentials involved or
a written statement of the reasons why the identification credentials cannot be
returned. Subject to Section 5.1 of this Agreement, BCS shall be liable for any
damage or loss sustained by Ordering Company if the identification credentials
are not returned to Ordering Company.
ARTICLE XIV
PURCHASE OF PRODUCTS
14.1 GENERAL. The provisions of this Article 14 shall be
applicable to the purchase of Products from BCS. If Software is also to be
licensed for use on a purchased Product, or if a Product is also to be
engineered or installed by BCS, the provisions of Articles 15 and 16 shall also
be applicable.
14.2 CHANGE CONTROL DATE. The Change Control Date ("CCD") for
Orders, is a date shown on the Order or confirmation of the Order, and is the
last date BCS will be required to accept changes to the Products ordered for
delivery on the Delivery Date for Customer-installed Products or for
installation on the In-Service Date for BCS-installed Products. The CCD is the
date BCS accepts the Order or is deemed to have accepted it pursuant to Section
2.2, unless a different date is shown on the Order or confirmation of the Order.
Changes to the original Order received by BCS prior to the CCD must be approved
in writing by authorized representatives of both parties. Changes to an Order
received and accepted by BCS after the CCD will be treated as separate Orders
and may be delivered after the Delivery Date for Customer-installed Products or
may be installed after the In-Service Date for BCS-installed Products. The CCD
for Orders for modifications or additions addressed in this Section will be the
date BCS accepts the Order or is deemed to have accepted it pursuant to Section
2.2.
14.3 ORDERING COMPANY-INSTALLED PRODUCTS.
(a) The "Delivery Date" is the date BCS
delivers the Products
to the Ordering Company's facility as specified in an Order or
confirmation of
Order.
(b) BCS will make reasonable accommodations if Ordering
Company requests a delay in the originally scheduled Delivery Date if Ordering
Company gives BCS written notice prior to the CCD. If Ordering Company gives
notice of a request for a delay in the originally scheduled delivery date after
the CCD, requests more than one delay in the Delivery Date prior to the CCD, or
causes a delay in the Delivery Date as a result of Ordering Company's failure to
meet obligations under this Agreement, BCS may cancel the Order and bill
Ordering Company for cancellation charges as set forth in Part 1 of this GPA;
provided however, that BCS shall give Ordering Company fifteen (15) days written
notice of its intention to cancel the Order and to bill cancellation charges
pursuant to this Section and shall not cancel the Order if Ordering Company
accepts delivery prior to the expiration of such period. In addition, BCS's
notice shall include a reasonable estimate of the anticipated cancellation
charges. Notwithstanding the foregoing provisions of this Section 14.3(b),
Ordering Company may delay delivery one time for up to thirty (30) days,
provided Ordering Company has given BCS seven (7) business days' notice prior to
the scheduled ship date.
(c) Shipping charges may be adjusted if Ordering
Company
changes the location for delivery.
14.4 BCS-INSTALLED PRODUCTS.
(a) This Section 14.4 overrides any inconsistent
terms in Part
1 of this Agreement. For all BCS Products, if BCS installs such
Products, BCS
will notify Ordering Company that the Product is installed in good
working order
and complies with BCS's standard specifications and any other
specifications
agreed to by the parties (the "In-Service Date"). For
BCS's DEFINITYPBX and Multimedia Messaging and Response ("MM&R") Products, such
notice will be in writing and Ordering Company shall have ten (10) days
following the In-Service Date (the "Acceptance Period") to test the DEFINITY
and/or MM&R Product and to determine whether Ordering Company agrees with BCS
that such Product complies with the applicable specifications and warranties for
that Product. If Ordering Company does not notify BCS in writing during such
Acceptance Period of any non-conformities to the applicable product
specifications and warranties, the Product will be deemed accepted as of the
In-Service Date.
During the Acceptance Period, Ordering Company may conduct
appropriate tests and then shall either: (a) accept the Product -- by providing
written notice to BCS of that fact, in which case the Product will be deemed
accepted as of the In-Service Date; or (b) if non-conformities to the
specifications or warranties exist, so advise BCS in writing, specifying such
non-conformities. BCS shall promptly correct such non-conformities and notify
Ordering Company that they were corrected. The Product will be deemed accepted
by Ordering Company upon correction of the non-conformities specified in
Ordering Company's notice.
If BCS is unable to correct all of the significant
non-conformities described in Ordering Company's notice within thirty (30) days
of receipt of Ordering Company's notice, Ordering Company shall either: (a)
accept the Product, in which case BCS will be required to continue to correct
any outstanding non-conformity; or (b) Ordering Company may reject the Product
without any liability and BCS will refund all amounts paid to BCS for the
returned Product plus transportation charges from BCS' plant and return; or (c)
have the Product replaced by BCS as promptly as possible by giving Ordering
Company priority over other customers at no additional charge. If Ordering
Company elects to reject the Product, it must do so in writing and within a
reasonable time frame.
(b) BCS will make reasonable accommodations if Ordering
Company requests a delay in the originally scheduled In-Service Date if Ordering
Company gives BCS written notice prior to the CCD. If Ordering Company gives
notice of a request for delay in the originally scheduled In-Service Date after
the CCD, requests more than one delay in the In-Service Date prior to the CCD,
or causes a delay in the In-Service Date as a result of Ordering Company's
failure to meet its obligations (e.g., its obligations under Section 13.6) under
this Agreement, Ordering Company and BCS will mutually agree to either: (i)
deliver the Products and commence billing as of the originally scheduled
In-Service Date, in which case installation will be rescheduled at a mutually
agreeable time and additional installation charges may apply; or (ii) cancel the
Order and bill Ordering Company for cancellation charges as set forth in Part 1
of this GPA. Notwithstanding the foregoing provisions of this Section 14.4(b),
Ordering Company may delay delivery one time for up to thirty (30) days,
provided Ordering Company has given BCS seven (7) business days' notice prior to
the scheduled ship date.
(c) For BCS-installed Products, BCS will perform a site survey
to identify Ordering Company's specific installation requirements. If the site
survey cannot be performed prior to the execution of an Order, it will be
scheduled and conducted as soon as Ordering
Company's facilities are available. Upon completion of the site survey, BCS will
identify and communicate to Ordering Company any additional charges that may
apply. If there were additional charges identified during the site survey,
Ordering Company may cancel the Order without incurring cancellation charges if
Ordering Company notifies BCS in writing within ten (10) days of Ordering
Company's receipt of the notice from BCS of the additional charges.
(d) Installation and shipping charges may be
adjusted if
Ordering Company changes the installation location.
14.5 PRODUCT WARRANTY.
(a) BCS warrants that as of the date title passes, BCS will
have the right to sell, transfer and assign Products and the title conveyed
shall be good and Products shall be delivered free from any security interests
or any other liens or encumbrances.
(b) For purposes of Sections 14.5(b) through 14.5(g) only, the
term "Product" also includes the Product's associated Software. During the
warranty period, BCS warrants to Ordering Company that the Products furnished
shall conform to and perform in accordance with BCS's standard specifications or
documentation and any other mutually agreed specifications. In addition, BCS
warrants to Ordering Company that the Products shall be merchantable and free
from defects in design (except to the extent (i) designed by Ordering Company or
(ii) design defects are caused by the presence in BCS's Product of substitute
components of Ordering Company's selection not recommended by BCS), material and
workmanship. BCS also warrants that the Products will be new, remanufactured, or
refurbished, and that installation and other services will be performed in a
first-class workmanlike manner.
(c) The warranty period shall be specified on an Order or
confirmation of the Order and shall begin on the Delivery Date for Ordering
Company-installed Products or on the In-Service Date for
BCS-installed Products.
However, for DEFINITY and/or MM&R Products, if in the course of acceptance tests
significant problems occur such that acceptance is delayed for more than ten
(10) days following Ordering Company's notice concerning such significant
problems, the warranty period shall commence upon acceptance. The warranty
period shall be one year if none is specified on the Order or confirmation of
the Order.
(d) (i) Replacement material shall be warranted as set forth
above in Section 14.5(b). Repaired material shall be warranted as set forth
above in Section 14.5(b) for the remainder of the original warranty period.
(ii) When BCS performs services under a
time-and-materials Order, replacement and repaired material, as well as
associated services, will be warranted for ninety (90) days from the date the
work is completed.
(e) If a Product (including any associated Installation
Services) does not meet the above warranties during the warranty period,
Ordering Company shall promptly notify BCS. BCS shall take the following action
promptly:
(i) Within the first sixty (60) days of the
warranty period, if
Ordering Company notifies BCS of a defect or
non-conformity that does
not appear to be curable through repair or
replacement within a
reasonable time period, Ordering Company will be
entitled, at its
option, to a refund of the Product's purchase price
and installation
charges upon return of the Product. Should Ordering
Company seek such a
refund, it will provide BCS such cooperation as necessary
to enable BCS
to remove the Product from Ordering Company's premises,
if necessary.
Transportation costs and risk of loss or damage in
transit shall be
borne by BCS. In the event of such a refund, Ordering
Company may also
return for credit any other BCS Products intended
for use with the
defective Product that cannot be applied to another
use by Ordering
Company and may cancel, without liability for
cancellation charges, any
pending Orders for such Products.
(ii) After sixty (60) days, BCS, at its option, shall
attempt first to
repair or replace such Product without charge or, if
not feasible,
refund the original purchase price and installation
charges. In the
event of such refund, Ordering Company shall
provide BCS such
cooperation as necessary to enable BCS to remove the
Product from
Ordering Company's premises, if necessary.
Transportation costs and
risk of loss or damage in transit shall be borne by BCS.
In addition,
in the event of such refund, Ordering Company may
also return for
credit any other BCS Products intended for use with
the defective
Product that cannot be applied to another use by
Ordering Company and
may cancel, without liability for cancellation
charges, any pending
Orders for such Product.
(f) All warranties shall continue in full force and effect
notwithstanding transfer of title (except for title to their associated
Software) to the Products by Ordering Company, so long as Ordering Company or
its Affiliates shall remain the user of the Product. All warranties shall also
survive inspection, acceptance and payment.
(g) THE FOREGOING PRODUCT WARRANTIES ARE
EXCLUSIVE AND ARE IN
LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT
NOT LIMITED TO
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR (1)
TANGIBLE PROPERTY
DAMAGE AND PERSONAL INJURY FOR WHICH BCS IS HELD LIABLE AND
(2) THE REMEDY
PROVIDED IN SECTION 5.1(E), ORDERING COMPANY'S SOLE AND
EXCLUSIVE REMEDY SHALL
BE BCS'S OBLIGATION TO REPAIR, REPLACE, CREDIT, OR REFUND AS SET
FORTH ABOVE IN
THIS WARRANTY.
(h) Certain additional warranties with respect
to Software are
set forth in Section 15.8.
14.6 WARRANTY/POST-WARRANTY SERVICE EXCLUSIONS.
(a) EXCEPT AS STATED IN SECTION 14.5, BCS,
ITS SUBSIDIARIES
AND THEIR AFFILIATES, SUBCONTRACTORS AND SUPPLIERS, MAKE NO
WARRANTIES, EXPRESS
OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF FITNESS
FOR A PARTICULAR
PURPOSE.
(b) The warranty provided in Section 14.5 and post-warranty
service do not cover repair for damages or malfunctions caused by: (1) actions
of non-BCS personnel or the attachment to the Products of non-BCS furnished
equipment or Software; (2) Ordering Company's failure to follow BCS's
installation, operation or maintenance instructions, including Ordering
Company's failure to permit BCS timely remote access to Ordering Company's
Products; (3) failure of products not serviced by BCS; (4) abuse, misuse or
negligent acts of non-BCS personnel; or (5) Force Majeure conditions following
delivery. In addition, BCS is not obligated to provide warranty or post-warranty
service if Ordering Company modifies the Software. If Ordering Company requests,
BCS will perform repair or other services not covered by this Agreement to
Ordering Company's BCS Products at the mutually agreed to rates for such
service.
(c) Additional charges may apply if BCS incurs additional
costs in providing warranty or post-warranty services as a result of a
modification of Products. Unless otherwise agreed, BCS shall not be responsible
to provide warranty or post-warranty Maintenance Services, if Ordering Company
has moved a Product without notifying BCS.
(d) BCS DOES NOT WARRANT UNINTERRUPTED OR
ERROR-FREE OPERATION
OF THE PRODUCTS AND BCS DOES NOT WARRANT THAT THE PRODUCTS WILL
PREVENT, AND BCS
WILL NOT BE RESPONSIBLE FOR, UNAUTHORIZED USE (OR CHARGES
FOR SUCH USE) OF
COMMON CARRIER TELECOMMUNICATION SERVICES OR FACILITIES
ACCESSED THROUGH OR
CONNECTED TO PRODUCTS. ORDERING COMPANY MAY PURCHASE BCS'S TOLL
FRAUD PROTECTION
PRODUCTS OR OFFERINGS (E.G., DEFINITY TOLL FRAUD INDEMNITY OFFER) IF IT CHOOSES
TO DO SO, PROVIDED BCS CONTINUES SUCH OFFERING.
14.7 DOCUMENTATION. BCS shall furnish to Ordering Company at
no additional charge and grant Ordering Company the right to use one copy of the
documentation for each unit of the Products provided hereunder. Such
documentation will be that customarily provided by BCS to its customers, for
that Product, at no additional charge. BCS shall also furnish to Ordering
Company the standard application and/or planning guide or a similar document, to
the extent BCS provides such a document for the Product. Such documentation
shall be provided
prior to or included with the shipment of the Products from
BCS to Ordering
Company. Additional copies of the documentation are
available at mutually
agreeable prices.
14.8 SPECIFICATIONS. Upon request, BCS shall provide to
Ordering Company, at no charge, and grant Ordering Company the right to use and
reproduce a copy of BCS's available commercial Specifications applicable to
Products ordered hereunder. In addition, a copy of BCS's Specifications shall be
provided with each unit. Additional copies are available at mutually agreeable
prices.
14.9 REGISTRATION AND RADIATION STANDARDS. When a Product
furnished under this Part III is subject to Part 68, Part 15 or any other part
of the Federal Communications Commission's Rules and Regulations, as they may be
amended from time to time, (hereinafter "FCC Rules"), BCS warrants that such
Product complies with the registration, certification, type-acceptance and/or
verification standards of FCC Rules including, but not limited to, all labeling,
customer instruction requirements, and the suppression of radiation to specified
levels. BCS shall also establish periodic ongoing compliance re-testing and
follow a Quality Control program, to assure that Product shipped complies with
the applicable FCC Rules. BCS agrees to indemnify and save Ordering Company
harmless from any liability, claims, or demands (including costs, expenses and
reasonable attorney's fees on account thereof) that may be made because of BCS's
noncompliance with the applicable FCC Rules. BCS agrees to defend Ordering
Company, at Ordering Company's request, against such liability, claim or demand.
In addition, should Product which is subject to Part 15 of the FCC Rules, during
use generate harmful interference to radio communications, BCS shall provide to
Ordering Company information relating to methods of suppressing such
interference and pay the cost of suppressing such interference or, at the option
of Ordering Company, accept return of the Product and refund to Ordering Company
the price paid for the Product less a reasonable amount for depreciation, if
applicable. Nothing in this Section 14.9 shall be deemed to diminish or
otherwise limit BCS's obligations under any other Section of this Agreement.
14.10 MARKING. All BCS Product furnished under this Agreement
shall be marked for identification purposes in accordance with mutually agreed
upon marking specifications. Such specifications shall be set forth in a
Supplemental Agreement or Order. All such Product shall also be marked with
BCS's model/serial number. This Section 14.10 does not reduce or modify BCS's
obligations under Section 4.4, TRADEMARKS, of this Agreement.
ARTICLE XV
SOFTWARE
15.1 GENERAL.
(a) The provisions of this Article 15 apply to the furnishing
of Software by BCS to Ordering Company pursuant to this Agreement. The ownership
interests and rights of the parties in Custom Software, in addition to the
applicable rights set forth in this Article, shall be established on a
case-by-case basis in subsequent Supplemental Agreements.
(b) To the extent that any provision set forth in this Article
conflicts with any provision set forth elsewhere in this Agreement, this Article
shall control.
(c) Software in this Article means both Custom
Software and
Licensed Materials.
15.2 SOFTWARE LICENSE.
(a) BCS grants Ordering Company a personal, non-transferable
(except to the extent allowed in Section 15.2(d) below) and non-exclusive right
to use, in object code form, all Licensed Materials and related documentation
furnished under this Agreement. Title to and ownership of all Licensed Materials
shall remain with BCS or its suppliers. This grant shall be limited to use with
the equipment for which the Licensed Materials was obtained or, on a temporary
basis, on back-up equipment when the original equipment is inoperable. Use of
Licensed Materials on multiple processors is prohibited unless otherwise agreed
to in writing by BCS. Ordering Company will not reverse assemble, reverse
compile, disassemble or decompile the Licensed Materials to derive a source code
equivalent of the Licensed Materials. Ordering Company will take appropriate
action to instruct Ordering Company's employees and users of all Licensed
Materials of Ordering Company's obligations under this Section.
(b) Ordering Company may make a reasonable number of copies of
Licensed Materials, solely for the purpose of back-up or archival use. Any such
copy must contain the same copyright and other notices and markings that the
original Licensed Materials contains. Use of Licensed Materials on any equipment
other than that for which it was obtained or removal of Licensed Materials from
the United States or other country in which the Licensed Materials was
originally deployed (without written consent of BCS, which will not be
unreasonably withheld), or reverse assembly, reverse compilation, disassembly or
decompilation of the Licensed Materials to derive a source code equivalent shall
immediately and automatically terminate the license with respect to the
particular unit of the Licensed Materials. If Ordering Company commits any other
material breach of the Licensed Materials license, the conditions of Article 5A,
ARBITRATION; DISPUTE RESOLUTION shall apply. BCS's cancellation of the license
at issue shall be tolled pending the outcome of the Dispute Resolution process.
Simultaneous with initial invocation of
such process, Ordering Company shall deposit and have held in escrow, until such
dispute is resolved, an amount equal to the current market price of the license
in question.
(c) BCS may provide Ordering Company with Software that bears
the logo or copyright of another company. If BCS provides such Software with a
"shrinkwrap" or other license from the other company, those terms apply rather
than the license terms in this Agreement. If Ordering Company requests, BCS will
give Ordering Company a copy of such other license terms before Ordering Company
orders the Software.
(d) If the equipment purchased hereunder is sold or assigned
to another party, BCS requires that the new owner or assignee execute a new
Licensed Materials license and pay the then current Licensed Materials license
fee, if any. Upon written request, BCS will grant the new owner or assignee of
the equipment the right to use any related Licensed Materials, provided the new
owner or assignee agrees, in writing, to BCS's terms and conditions and pays
BCS's then current Licensed Materials license fee. BCS shall seek to enforce its
rights in the first instance against the new owner or assignee. If the new owner
or assignee of the equipment refuses to execute a new Licensed Materials license
agreement or pay the applicable Licensed Materials license fee, or if the
equipment is no longer to be used by Ordering Company, Ordering Company shall
either return the Licensed Materials, together with any copies, or destroy the
Licensed Materials and all copies, and provide BCS with prompt written notice of
such destruction. Notwithstanding the preceding provisions of this Section
15.2(d), Ordering Company may transfer the Licensed Materials to another
Ordering Company in connection with a transfer of the associated equipment, and
BCS will not charge the new Ordering Company a Licensed Materials license fee
therefor.
15.3 SOFTWARE. On the delivery date, BCS shall furnish to
Ordering Company, at the fee specified in the Order or Supplemental Agreement,
at least the following basic items:
(a) Object Code stored in a medium
compatible with the
equipment, as described in BCS's Specifications, the
applicable Supplemental
Agreement or the Order;
(b) User documentation which BCS normally furnishes to
customers with the Licensed Materials at no additional charge, and any user
documentation specified in the applicable Supplemental Agreement; and
(c) If appropriate and if not previously
provided, the
required machine configuration.
15.4 INSTALLATION OF SOFTWARE. Where Ordering Company is
responsible for installation of Software, BCS's sole responsibility is to
deliver the Software to Ordering Company on or before the scheduled Delivery
Date specified in the Order or Supplemental Agreement. However, if BCS is
responsible for such installation, BCS shall deliver the Software to Ordering
Company in sufficient time for it to be installed on or before the scheduled In-
Service Date specified in the Order or Supplemental Agreement, and BCS shall
complete its installation and associated testing on or before such date.
15.5 CENTRALIZED MAINTENANCE. Ordering Company
may specify in
an Order that, for centralized maintenance purposes, all
Software changes,
including Enhancements, provided by BCS shall be provided only to the Ordering
Company's Centralized Support Organization. BCS will, in that event, be
responsive to maintenance requests which the Ordering Company's Centralized
Support Organization issues. This Organization will be responsible for Software
application, initial acceptance testing and distribution of the Software to all
licensed installations. BCS grants Ordering Company the right to transmit the
Software by means of data links from Ordering Company's Centralized Support
Organization to each licensed installation. BCS grants to Ordering Company, at
no additional fee, a license to use a copy of the Software for centralized
maintenance purposes only. BCS shall provide this maintenance copy of the
Software in response to an Order requesting same. The maintenance copy provided
to the Ordering Company's Centralized Support Organization will be used only to
perform systems or application support functions for the Ordering Company's
application programmers, except as provided hereinafter. If the maintenance copy
of the Software provided pursuant to this Section 15.5 or a copy thereof is
later incorporated by the Ordering Company's Centralized Support Organization
into a Ordering Company system or application support Software, Ordering Company
shall notify BCS and shall pay BCS the current applicable rate paid by Ordering
Company for use of the Software.
15.6 ENHANCEMENTS. BCS shall promptly furnish to Ordering
Company during the duration of the Order, at an agreed upon charge, if any, all
Software Enhancements and telephone technical assistance made available by BCS
to commercial customers and shall promptly provide to Ordering Company any
revisions to the basic Software items defined in Section 15.3 to reflect the
Enhancements. All Enhancements shall be considered Software subject to the
provisions of the Order. Ordering Company may incorporate the Enhancements into
the Software or continue using previous versions of the Software, at Ordering
Company's option. Ordering Company may, at any time and at its discretion,
discontinue maintenance of the Software. BCS shall not charge Ordering Company
for Quality Protection Plan Change Notices (QPPCNs) during the warranty period
or during any contracted-for post-warranty maintenance period. If the QPPCN is
required for warranty or post-warranty service, and Ordering Company elects not
to obtain the QPPCN, continuation of warranty or post-warranty service may be
subject to additional charges.
15.7 TRAINING AND TECHNICAL SERVICE. BCS shall
provide such
assistance, advice and training at no additional charge, as it
normally provides
without charge to other customers.
15.8 SOFTWARE WARRANTY. BCS warrants to Ordering
Company all
of the following:
(a) The Software will be free from significant errors, will
conform to and perform in accordance with the Specifications and will function
properly. The Media conveying the Software will be free from defects in material
and workmanship. The Software will be compatible with and may be used in
conjunction with other Software as described in the Specifications. If an Order
states that the Software is to be used in conjunction with certain BCS
equipment, the Software shall be compatible with that equipment. The foregoing
warranties extend to the future performance of the Software and shall continue
for one year except as otherwise specified in a Supplemental Agreement or Order.
(b) Software-related Work will be performed in a
first-class,
workmanlike manner.
(c) With respect to BCS-developed Software, there are no copy
protection or similar mechanisms within the Software which will, either now or
in the future, interfere with the grants made in this Agreement or an Order .
With respect to non-BCS developed Software, BCS will use reasonable efforts to
insure that there are no copy protection or similar mechanisms within the
Software which will, either now or in the future, interfere with the grants made
in this Agreement or an Order.
(d) Ordering Company shall have quiet enjoyment
of the
Software.
(e) As to Software for which BCS does not solely own all
intellectual property rights, BCS has full right, power and authority to license
the Software to Ordering Company as provided in this Agreement or an Order.
(f) If the Software, or any portion thereof, is or becomes
unusable, totally, or in any respect during the applicable warranty period, or
if the work fails to meet the warranties, BCS will reperform work, correct
errors, defects and nonconformities and restore the Software to conforming
condition free of significant errors at no cost to Ordering Company. Corrected
Software shall be warranted as set forth in this clause.
(g) The Software does not contain any malicious code, program,
or other internal component (e.g. computer virus, computer worm, computer time
bomb, or similar component), which could damage, destroy, or alter Software,
firmware, or hardware or which could, in any manner, reveal, damage, destroy, or
alter any data or other information accessed through or processed by the
Software in any manner. BCS shall immediately advise Ordering Company, in
writing, upon reasonable suspicion or actual knowledge that the Software
provided under this Agreement or an Order may result in the harm described
above.
(h) All warranties shall survive inspection,
acceptance and
payment.
15.9 RELATED DOCUMENTATION. BCS shall furnish to
Ordering
Company, at no additional charge, and grant Ordering Company the
right to use
one copy of the related
documentation for each unit of the Software furnished by BCS pursuant to this
Agreement for the sole purpose of operating and maintaining such Software. Such
related documentation will be that customarily provided by BCS to its customers
for such Software, consistent with the vintage, options and feature of the
system on which it operates. Such related documentation shall be provided prior
to or included with provision of Software by BCS to Ordering Company. Additional
copies of the related documentation are available at prices set forth in BCS's
Price List.
15.10 NOTIFICATION OF DISCONTINUED AVAILABILITY OF SOFTWARE.
BCS shall notify Ordering Company at least one (1) year in advance of
discontinued availability of the last standard Software generic. For a minimum
of two (2) years after discontinued availability, BCS will make available to
Ordering Company, Software support service which affords Ordering Company
reasonable continued use of the Software.
15.11 RISK OF LOSS. If any Software fixed in Media is lost,
damaged or made invalid during shipment, BCS will promptly replace the Software
and Media therefor at no additional charge to Ordering Company. If any Software
is lost or damaged while in the possession of Ordering Company, BCS will
promptly replace the Software at mutually agreed charges.
15.12 ACCESS TO SOURCE CODE
(a) If Supplier is declared bankrupt, and as a result of such
bankruptcy, BCS is unable to maintain Software so that Ordering Company is
unable to use the Software, then BCS shall furnish to Ordering Company (under a
suitable license agreement, if applicable) BCS's then existing Software Source
Code and associated documentation for the affected Product(s) for such standard
version only to the extent to allow Ordering Company to use solely for its
internal purposes such Software for which Ordering Company has a perpetual,
non-exclusive right to use.
(b) If Ordering Company's use of the Software Source Code
provided pursuant to Section 15.12(a) involves use or copying of copyrighted
material or the practice of any invention covered by a patent, Supplier shall
not assert the copyright or patent against Ordering Company for use of the
Software Source Code as originally provided by Supplier within the scope of the
rights granted in Section 15.12(a).
(c) The parties may negotiate additional rights for Ordering
Company to access particular Software Source Code on a case-by-case basis, as
set forth in a Supplemental Agreement or Order.
ARTICLE XVI
MAINTENANCE, INSTALLATION
AND OTHER MISCELLANEOUS SERVICES
16.1 GENERAL. The provisions of this Article 16 shall be
applicable to the furnishing by BCS of Services other than Services furnished
pursuant to any other Article of this Agreement. Such services include, but are
not limited to Maintenance Services and other Miscellaneous Services.
16.2 POST-WARRANTY MAINTENANCE PERIOD. If Ordering Company
orders post-warranty service, it will commence on the expiration of the
applicable warranty period and will be provided for an initial term as specified
on the relevant Supplemental Agreement or Order. BCS shall provide Ordering
Company with written notice of pending expiration of applicable Maintenance
period, ninety (90) days prior to expiration.
16.3 MAINTENANCE SERVICES TERMINATION. BCS shall provide all
Maintenance Services required by this Agreement upon the provisions set forth in
this Agreement and in Orders placed by Ordering Company pursuant to this
Article. At any time, Ordering Company may terminate individual Orders for
Maintenance Services, provided Ordering Company gives at least sixty (60) days
prior written notice to BCS. If the charges for a terminated Order were paid
annually in advance, BCS shall promptly refund to Ordering Company the unused
prorate portion of the charges. Ordering Company and BCS agree to separately
address in Orders or Supplemental Agreements the appropriate notice provisions
and/or early termination charges for multi-year maintenance service periods.
16.4 POST-WARRANTY SERVICE.
(a). Post-warranty service includes preventive maintenance as
deemed appropriate by BCS and remedial maintenance, including replacement parts
required for Products used under normal operating conditions. BCS shall maintain
such Maintenance records, including records with respect to On-site Response
Time and Time to Repair, as it keeps in its normal course of business. Upon
request of Ordering Company, BCS shall provide a copy of such records to
Ordering Company.
(b) If Ordering Company subsequently obtains additional
Products similar to the Products covered under any Order issued pursuant to this
Part III of the GPA, or requests certification or connection of equipment
similar to the Products covered under any Order issued pursuant to this Part III
of the GPA, and co-locate those Products or equipment (the "Added Products")
with the existing ones, upon warranty expiration the Added Products will also be
covered for post-warranty service under this Part III of the GPA and Ordering
Company agrees to pay any applicable post-warranty service charges. Such charges
will be at the then current
monthly rate and coverage will be the same as and coterminous
with the coverage
for the existing Products.
16.5 WARRANTY AND POST-WARRANTY COVERAGE AND
SUPPORT.
(a) PURCHASED OR REPLACEMENT PARTS MAY BE NEW, REMANUFACTURED
OR REFURBISHED and will be functionally equivalent to a new Product. Any removed
parts and/or Products will become the property of BCS.
(b) Warranty and post-warranty service coverage will be in
accordance with the option(s) Ordering Company has selected as identified on the
Order or confirmation of the Order. BCS's standard warranty and post-warranty
coverage will apply if none is specified. BCS's warranty and post-warranty
service coverage options, and Ordering Company's responsibilities, are described
in Exhibit 16-1 to this Part III of the GPA.
(c) Under BCS's warranty and post-warranty service, BCS is
responsible for damage to the Products (excluding loss or corruption of data
records) from power surges as long as Ordering Company has installed BCS
provided or approved electrical protection to the Products and the electrical
protection complies with the National Electrical Code and any applicable
federal, state and local laws.
(d) Warranty and post-warranty service
exclusions are set
forth in Section 14.6(b) above.
16.6 CONTENTS OF MAINTENANCE ORDER. A
Maintenance Order shall contain the following:
(a) The incorporation by reference of this
Agreement;
(b) A complete list of Equipment to be maintained specifying
quantity and type, description of Maintenance Services, duration of Order,
monthly or annual maintenance charges for each item of Equipment, total monthly
maintenance charges payable by Ordering Company and invoice address;
(c) The location at which the Equipment is to be
maintained,
including floor, street, city and state; and
(d) Any other special terms agreed upon by both
parties.
16.7 AUDIT. With the exception of any fixed basic monthly or
annual maintenance charge set forth in this Agreement or an Order, BCS shall
maintain complete, clear and accurate records of: (a) all hours of direct labor
employees engaged in work for which
payment under this Agreement is to be computed on the basis of actual hours
worked, at a fixed rate per hour or other unit of time specified in this
Agreement; and (b) billable costs payable by Ordering Company under this
Agreement including a physical inventory, if applicable. These records shall be
maintained in accordance with generally accepted accounting principles so they
may be readily audited and shall be held until costs have been finally
determined under this Agreement and payment or final adjustment of payment, as
the case may be, has been made. BCS shall permit Ordering Company or Ordering
Company's representative to examine and audit these records and all supporting
records at all reasonable times. Audits shall be made not later than one
calendar year after the expiration or termination of an Order, and the
correctness of BCS's billing hereunder shall be determined from the results of
that audit. In making arrangements with a vendor for the furnishing of labor,
material or other items for which Ordering Company will be charged separately
from the fixed basic monthly maintenance charges as set forth in this Agreement
or the applicable Supplemental Agreement or Order, BCS shall require its vendor
to keep separate records, and make separate invoices, covering only what is so
supplied, so that no part of the records or invoices shall apply to jobs not
covered by this Agreement. In making payments to a vendor for labor, material or
other items for which Ordering Company will be charged separately from the fixed
basic monthly maintenance charges as set forth in this Agreement or the
applicable Supplemental Agreement or Order, BCS shall show its vendor's invoice
number and date on BCS 's payment advice, and no part of that payment shall
apply to other jobs not covered by this Agreement.
16.8 BREAKAGE, DISAPPEARANCE AND CONDITION. BCS shall take
whatever precautions BCS deems necessary or desirable (which do not violate
Ordering Company's plant rules or cause inconvenience or delay to Ordering
Company) regarding tools, equipment, and materials, whether or not owned by BCS,
which BCS causes to be brought to Ordering Company's premises. Ordering Company
shall have no responsibility for their care, safekeeping or operating condition.
Ordering Company shall not bear any cost or expense associated with their
breakage or disappearance unless resulting from Ordering Company's negligence.
16.9 CONTINGENCY. If BCS fails to perform
the Maintenance
Services, Ordering Company may arrange for the performance of
the Maintenance
Services by another party.
16.10 ELIGIBILITY FOR MAINTENANCE SERVICES. Equipment shall
automatically be eligible for Maintenance Services provided it shall have been
under Maintenance Service or warranty by BCS on the date of commencement of
Maintenance Services. Any other Equipment shall be inspected by BCS at mutually
agreed to charges to determine whether it is in good working order and can be
maintained in that condition. BCS shall notify Ordering Company in writing about
the eligibility of the Equipment. If the Equipment is not eligible, but can be
made eligible, Ordering Company may, at its expense, make or have made those
changes required to upgrade the Equipment to eligibility status.
16.11 MAINTENANCE FACILITIES. Ordering Company shall provide
BCS with adequate storage space for spare parts and adequate working space,
including heat, light, ventilation, electric current and outlets for use by
BCS's maintenance personnel. These facilities shall be within a reasonable
distance of the Products to be serviced and shall be provided at no charge to
BCS. Ordering Company shall not be responsible for any damage to BCS's equipment
or materials stored on Ordering Company's premises unless the damage results
from Ordering Company's negligence.
16.12 PRECAUTIONS. BCS shall take care in all operations to
safeguard people as well as property and will strive to minimize interference
with or curtailment of Ordering Company or customer operations at the work site.
16.13 TECHNICAL INFORMATION, SOFTWARE AND PROGRAMMING AIDS.
BCS shall furnish to Ordering Company on the agreed-upon delivery date without
additional charge any technical information, programs, routines, subroutines,
documentation, or related material it has or may develop or modify, necessary
for the general use or maintenance of Products under post-warranty maintenance
service, which are normally so furnished to maintenance customers.
16.14 TITLE. Except as maybe set forth in an applicable
Supplemental Agreement or Order, title to replacement and repair parts and
components shall vest in Ordering Company upon installation on equipment owned
by Ordering Company. Any parts replaced shall become the property of BCS. Title
to enhancements and modifications and to intellectual property rights therein
shall remain in BCS.
16.15 TRAINING AND TECHNICAL SERVICE. BCS shall
provide,
without additional charge to Ordering Company, the training and
assistance as it
normally provides without charge to maintenance customers.
16.16 MAINTENANCE SERVICES WARRANTY. BCS warrants to Ordering
Company that the Maintenance Services shall be performed with promptness and
diligence, in a first-class, workmanlike manner in accordance with applicable
specifications and using material free from defects, and that the Product shall
function in good operating condition during the duration of the Maintenance
Order. All warranties shall survive inspection, acceptance and payment.
Maintenance Services (including replacement parts) not meeting the above
warranties will be corrected by BCS at no cost to Ordering Company or if BCS is
unable to do so within a reasonable period of time, then Ordering Company may
terminate the applicable maintenance Order with respect to that Product without
liability for cancellation charges. Whenever equipment, repair parts or
components under warranty are shipped for repair or replacement purposes, BCS
shall bear all costs, including but not limited to, costs of packing, rigging,
transportation and insurance. BCS shall also bear all risk of loss or damage
from the time the equipment, repair parts or components are removed from
Ordering Company's site until the equipment, repair parts or components are
returned to that site and installed by BCS.
16.17 TECHNICAL SUPPORT OF PRODUCTS. With respect to the
DEFINITY Product Line, BCS shall, in addition to its obligations under Product
Warranty, make available, at mutually agreeable rates, ongoing technical support
including, but not limited to the expertise to identify, isolate, and resolve
problems, that BCS customarily provides, including telephone assistance, field
Service, and technical consultation Service for DEFINITY Products provided under
this Agreement for a period of the longer of (A) ten (10) years after
installation of the particular DEFINITY Product; or (B) five (5) years after
last shipment of such type of Product to Ordering Company. The period for BCS's
Multi-media Messaging and Response Product Line is five (5) years after such
Product's discontinued availability effective date unless modified by
Supplemental Agreements.
16.18 REPORTS. At Ordering Company's request, and subject to
mutually agreed charges, BCS will provide periodic or other reports in a
mutually agreeable format concerning such matters as billings for Products and
Services, time to repair and time for Order completion.
16.19 WARRANTY FOR SERVICES OTHER THAN MAINTENANCE SERVICES.
BCS warrants to Ordering Company that Services will be performed in a
professional manner and in accordance with BCS's Specifications or those
referenced in the Order and with accepted practices in the community in which
such Services are performed, using material free from defects except where such
material is provided by Ordering Company. If the Services prove to be not so
performed and if Ordering Company notifies BCS, with respect to other
Miscellaneous Services (e.g., Move, Change and Rearrangements), within a
mutually agreed to period commencing on the date of acceptance of the Service,
BCS, at its option, either will correct the defect or nonconforming Service for
which BCS is responsible or render a full or prorated refund or credit based on
the original charge for the Services. After the corrective action, Ordering
Company shall have the right to inspect and accept the corrective work done.
16.20 CONDITIONS OF INSTALLATION AND OTHER
SERVICES PERFORMED
ON ORDERING COMPANY'S SITE.
(a) ITEMS PROVIDED BY ORDERING COMPANY. Ordering
Company will
be responsible for furnishing the following items as required:
(i) OPENINGS IN BUILDINGS - Prior to
Service start date,
furnish suitable openings in buildings to allow
Products to be
placed in position, and provide necessary
openings and ducts
for cable and conductors in floors and walls as
designated on
engineering drawings furnished by BCS with
input provided by
Ordering Company. BCS shall provide such
drawings to Ordering
Company in sufficient time to meet project service dates.
Ordering Company shall fireproof (with steel
covers) all paths
throughout the building.
(ii) BUILDING EVACUATION - Prior to
Services start date,
provide building evacuation plans in case of a
fire or other
emergency.
(iii) CEILING INSERTS - Provide ceiling
inserts as required
using BCS's standard spacing arrangement for
ceiling support
equipment.
(iv) MATERIAL FURNISHED BY ORDERING COMPANY
- - New or used
third party material furnished by Ordering
Company shall be in
such condition that it requires no repair and no
adjustment or
test effort in excess of that normal for
new equipment.
Ordering Company assumes all responsibility
for the proper
functioning of such material. Ordering
Company shall also
provide the necessary third party Product
information and,
where possible and permitted, access to
special third party
test equipment and tools, for BCS to
properly install such
material.
(v) PERMITS - Prior to Services start date,
Ordering Company
shall provide all licenses, permits, easements,
right of ways
and authority for installation of Products and
other material;
and construction and building permits.
(vi) USE OF AVAILABLE TESTING EQUIPMENT -
Ordering Company
shall make available to BCS the maintenance
test facilities
which are imbedded in equipment to which the
Product being
installed will be connected or added, and,
if available,
meters, test sets, and other portable apparatus
that is unique
to the Product being installed. BCS's use
of such test
equipment shall not interfere with the
Ordering Company's
normal equipment maintenance functions.
(vii) GROUNDS - Ordering Company shall
provide access to
suitable and isolated building ground as
required for BCS's
standard grounding of equipment. Where
installation is outside
or in a building under construction, Ordering
Company shall
also furnish lightning protection ground.
(viii) CLEARING EQUIPMENT FOR MODIFICATIONS -
Ordering Company
shall remove, or transfer telecommunications
traffic on trunks
and sundry working equipment, and make
other arrangements
required to permit BCS to modify existing
equipment.
(ix) BATTERY ROOM VENTILATION - Ordering Company
shall provide
the required ventilation for battery rooms or
areas.
(xvii) HOUSE SERVICE PANEL - Ordering Company
shall provide
electric power from the Ordering Company's
Service panel to
BCS's power board and shall run all leads
between said Service
panel and power board.
(b) ITEMS TO BE FURNISHED BY BCS. The following
items will be
furnished by BCS (if required by the conditions of the particular
Service) and
the price thereof is included in BCS's price for Services:
(i) PROTECTION OF EQUIPMENT AND BUILDINGS -
BCS shall follow
its standard practices in providing
protection for Ordering
Company's equipment and buildings during the
performance of
the Services.
(ii) WIRE CONDUIT - BCS shall install
wire conduit as
specified in the Ordering Company's
specifications.
(iii) WIRE FRAMING - BCS shall install wire
conduit, fixtures,
and other necessary material for wire framing
distribution as
specified in Ordering Company's specification.
(iv) TEMPORARY DAILY CLOSING AND
FIREPROOFING - BCS shall
provide temporary daily closing for all
occupied buildings,
and fireproof all openings that BCS makes in
any occupied
building in the course of providing the Services.
(v) TOOLS AND EQUIPMENT - Unless
otherwise specifically
provided in this Agreement, BCS shall provide
all labor, tools
and equipment (the "tools") for performance of
this Agreement.
Should BCS actually use any tools
provided by Ordering
Company, BCS acknowledges that BCS accepts the
tools "as is,
where is". BCS acknowledges that Ordering
Company has no
responsibility for the condition or state of
repair of the
tools and BCS shall have risk of loss and
damage to such
tools. BCS agrees not to remove the tools from
the work site
and to return the tools to Ordering Company upon
completion of
use, or at such earlier time as Ordering
Company may request,
in the same condition as when received by BCS,
reasonable wear
and tear excepted.
(vi) CLEAN UP - BCS at all times, and at its
expense, shall
keep the premise free from accumulation of
waste materials or
rubbish caused by BCS's operation. Upon
completion of the
work, BCS shall, at its expense, as promptly
as practical,
remove from the premises all of BCS's
implements, equipment,
tools, machines and surplus. In addition, BCS
shall clean up
its waste materials and debris and
dispose of same in
containers to be provided by Ordering Company.
If BCS fails to
clean up as provided herein, Ordering Company
may do so and
charge the cost thereof to BCS or deduct
same from the
Ordering Company's payment to BCS, provided
Ordering Company
has given prior notice to BCS and BCS has not
commenced to
cure within twenty-four (24) hours.
(vii) HAZARDOUS MATERIALS CLEANUP - At the
conclusion of the
Services, BCS shall be responsible for the
cleanup, removal,
and proper disposal of all
Hazardous Materials introduced by BCS or its
sub-contractors
to Ordering Company's premises.
(viii) Subject to an additional charge, the
following items
may be furnished by BCS if mutually agreed to:
(1) RERUNNING CROSS-CONNECTIONS - BCS may
rerun permanent
cross-connections in accordance with revised
cross-connection
lists furnished by the
Ordering Company's cross-connection list.
(2) HANDLING, PACKING,
TRANSPORTATION, AND
DISPOSITION OF REMOVED AND SURPLUS
ORDERING COMPANY
EQUIPMENT - BCS may pack, transport,
and dispose of
surplus and removed Ordering Company
equipment as
agreed by the parties.
(3) PREMIUM TIME ALLOWANCES AND NIGHT
SHIFT BONUSES -
BCS may have its Services personnel
work premium time
and night shifts to the extent that BCS
may deem such
to be necessary to effect the
required coordination
of installing and testing
operations or other
Services because of Ordering Company's
requirements.
16.21 TRAINING. If requested by Ordering Company, BCS will, at
mutually agreed prices: (a) provide instructors and the necessary instructional
material of BCS's standard format to train Ordering Company's personnel in the
installation, planning and practices, operation, maintenance, and repair of
material furnished under this Agreement with such classes to be conducted at
intervals and locations agreed upon by BCS and Ordering Company; or, (b) if
agreed to by BCS, license Ordering Company to reproduce BCS's copyrighted
training modules or manuals, covering those areas of interest outlined above in
this Section 16.21, sufficient in detail and format, to allow Ordering Company
to develop and conduct its own training program.
16.22 INSTALLATION/CUTOVER ASSISTANCE. In the event BCS is not
installing the material, and if requested by Ordering Company, BCS agrees to
make available at the installation site, at a negotiated price plus travel and
living expenses, a field engineer to render installation and cutover assistance
as required by Ordering Company.
ARTICLE XVII
EXHIBITS
17.1 LIST OF EXHIBITS. The following exhibits
are incorporated
by reference and are part of this Part III of this Agreement:
Exhibit 13-1 - Sample Project Milestones and
Responsibilities
Exhibit 13-2 - Implementation Roles and Responsibilities
for an Order
Exhibit 16-1 - Basic Service Description of Warranty Or
Post Warranty
Service Coverage Offerings and Support
Options For
Equipment And Licensed Material
Exhibit 16-2 - Dedicated Technician Service
IN WITNESS WHEREOF, the parties have caused this General Purchase Agreement to
be executed by their duly authorized representatives on the
date(s) indicated.
AT&T CORP. LUCENT
TECHNOLOGIES INC.
By /s/ By /s/
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